Jersey Unreported Judgments

Property - boundary dispute between neighbours.

[2015]JRC068

Royal Court

(Samedi)

10 April 2015

Before     :		W. J. Bailhache, Bailiff, and Jurats Fisher and Marett-Crosby
Between	Catriona Mary Fogarty		Plaintiff
And	St Martin's Cottage Limited		Defendant

Advocate D J. Benest for the Plaintiff.

Advocates C. Hall and R. A. Falle for the Defendant.

judgment

the bailiff:

Introduction

1.        In deep and leafy St Lawrence, above the Millbrook reservoir, La Ruelle de St Clair winds its harmless way down from Le Mont Cochon to Waterworks Valley.  Unfortunately, in this quiet and peaceful part of the Island a dispute between neighbours which has been rumbling for many years has erupted into litigation which, had there been any sensible efforts made at compromise, ought to have been capable of being settled without access to the Court becoming necessary.  We have not, of course, seen any without prejudice correspondence which has passed between the parties or their lawyers; but what we are left with is in essence a plaintiff sitting on what she perceives to be her legal rights as a result of which her immediate neighbours have not been able to enjoy the occupation of a property which they acquired, apparently in good faith and ignorant of the potential for conflict that lay round the corner. 

2.        We record immediately that at the commencement of the hearing, Advocate Benest raised an issue suggesting that Jurat Fisher might be a personal friend of a Mrs de Carteret, formerly Dodds, who would be giving evidence in the case.  Jurat Fisher, who used to be the Connétable of St Lawrence prior to his election as a Jurat in 2009, thought that he might have met Mrs de Carteret in that former capacity, but he had no recollection of any such meeting and confirmed that he would not regard himself as a personal friend of Mrs de Carteret.  Indeed we did not think it was appropriate that he should recuse himself.  In those circumstances, Advocate Benest confirmed that no formal recusal application would be made. 

The contracts

3.        The plaintiff is the owner of the property known as Clairmont in La Ruelle de St Clair.  She inherited the property from her mother Marcia Rachael Fogarty, née MacAllister, who acquired the property jointly and for the survivor of them with her husband (the plaintiff's father), John Philip Francis Fogarty, on 30^th July, 1976.  Prior to that date, the property had belonged to the plaintiff's father who had bought it on 12^th February, 1971, from a Mr Gerald Arthur de la Haye.  The latter contract of acquisition in 1971, in translation, contained the following description of the property sold:-

"The said Mr Gerald Arthur de la Haye of his own free will sold in perpetuity for himself and his heirs to the said John Philip Francis Fogarty Esq for himself and his heirs a certain piece of land with the banks and offsets on the north and on the west, being the western part of a certain piece of land which he had acquired from Ms Joan Isolda Mauger by contract dated 23rd February 1952, the said piece of land measuring from east to west on the northern side 81 feet or thereabouts and on the southern side 87 feet or thereabouts and measuring from north to south by the western side 151 feet or thereabouts and by the eastern side 178 feet or thereabouts, the said measurements being taken in imperial feet and being agreed between the said parties. Item certain house called Clairmont with the garage dependent thereon and the buildings and garage which the vendor had erected on part of the said piece of land presently sold. The whole together forming a single corpus fundus, joining by the east to the property called Treetops belonging to Mr Alan John Auty ... , by the south the land of Ms Iris May Laurens wife of Henry Hamon Coutanche and bordering by the west as well as by the north the public road called La Ruelle de St Clair."

4.        The defendant owns the property Treetops.  It acquired that property from Mrs Judith Wynne Dodds née Jones (Mrs de Carteret) by contract passed on 2^nd March, 2007.  The description of the land acquired was as follows:-

"The Vendor has sold to the Purchaser in perpetuity, the property called "Treetops" consisting of a house, extension, garage, swimming pool, lands or gardens and appurtenances, with the bank and offset of the north, the whole as hatched in diagonal lines for identification purposes only on the extract of the digital map attached as a schedule to this contract and having the unique property reference number UPRM69120957 ("the Property"), joining on the east, the property called "Les Closes" owned by Vernon Harold Palmer ..., on the west the property called "Clairmont" owned by Caitriona (or Catherine) Mary Fogarty, (entitled as sole legatee under the will of immovable estate of Marcia Rachael Fogarty née MacAllister, registered by Act of the Royal Court dated 22nd December 1999), on the south a côtil called Le Côtil du Chasseur owned by Henry George Coutanche ... and bordering on the north on the public road known as "La Ruelle de St Clair".

The property is separated from "Clairmont" by way of two boundary stones planted as follows:-

The first near the north-east corner of "Clairmont" 21 feet 8½ inches to the south-east of the south-east corner of the wall on the southern side of the property "Ringwood" situate on the other side of the public road "La Ruelle de St Clair" situate to the north of "Clairmont" and "Treetops" and forming the western side of the gate, the most easterly of two gates of "Ringwood", 17 feet 6 inches to the south inclining west of the south-east corner of the south wall, the most westerly of the walls, of the property "Sebenezer" also situate on the other side of the public road and 35 feet 1 inch to the south east of the south-east corner of an inspection chamber established in the public road (the latter measurement taken following the incline of the ground).

And the second near the south-east corner of "Clairmont" 8 feet 7½ inches to the west of the foot of the wall near the West side of the property and 24 feet 9 inches to the north-west of the south-west corner of a pillar (the most southerly of the pillars) found in the higher section of the wall in decorative screen blocks near the western side of the property.

The measurements taken following the incline of the ground.

The two boundary stones belong (without offset) to Miss Fogarty to be maintained and up kept as such in perpetuity.

The boundary line separating Clairmont on its eastern side with the property is a straight line taken along the eastern faces of the two new boundary stones, herein before described and projected to the south and to the north until attaining the south and north boundaries of Clairmont."

5.        The defendant's contract of acquisition then set out six clauses which are of no relevance to the present dispute, but which related to arrangements between the owner of Treetops and the owner of Les Closes, the property on higher ground to the east of Treetops.  The defendant's contract then proceeded:-

"The whole in perpetuity.

...

The Property was sold with all and any other rights, appurtenances and dependencies as may attach thereto and in its present condition with all its apparent or hidden defects, ("vices cachés"), if any and is situate in the Parish of St Lawrence, Vingtaine du Coin Hatain.

The Purchaser was bound to conform to all clauses, conditions and restrictions to which the Vendor was subject for and on account of the Property to which She was entitled both jointly with Barry Maclean de Carteret by contract dated 3rd May 1966 from John Clifford Farley and Jeannie Diane Buchan Farley née Goodacre his wife as well as by the hereditary sale cession and transfer to her of his proprietary rights by Mr de Carteret by contract dated 19th December 2003 ..."

6.        It is noteworthy that the defendant in its contract of acquisition makes no claim on the western side of its property.  The contract simply refers to Treetops joining the property Clairmont by the west, and noting the demarcation line between the two properties as being a straight line taken on the eastern faces of the two boundary stones the positions of which are described in the contract as set out above. 

7.        It is similarly to be noticed that in Mr Fogarty's contract of acquisition in 1971, he made no claim to any ownership on the eastern side towards the property Treetops.  He claimed the ownership of the banks and offsets on the north and western sides, but nothing towards the east.  What there was, however, was a set of measurements of the land he acquired from west to east and from north to south.  Although this may have been standard conveyancing practice at the time, it is clear to us that this was not an entirely satisfactory method of conveying property accurately.  Not only was and indeed is the land situated on a hillside, with therefore uneven topography, but also country lanes like La Ruelle de St Clair are liable with the use of heavy traffic to become wider as the banks adjacent to the road get worn down over the course of time.  

8.        Mr Gerald de la Haye, the predecessor in title of the plaintiff's father, acquired Clairmont from Ms Joan Isolda Mauger, by contract passed before Court on 23^rd February, 1952.  It is clear that Ms Mauger owned what is now both the Treetops site and the Clairmont site.  In this deed of sale, the purchaser again made no claim on the eastern side towards the property which was reserved by the vendor, although the measurements of the land conveyed were those which subsequently reappeared in the contract of sale to the plaintiff's father in 1971.  Interestingly, the description of the property sold to Mr John Auty, a predecessor in title of the defendant, by a Ms Taunton, the heir of Ms Joan Isolda Mauger on 15^th March, 1968, was, in translation as follows:-

"Certain piece of land with the banks and offsets on the north and the west being the western part of a certain piece of land called "Les Côtils au Dessus du Clos du Four".

9.        The description therefore suggests that what was sold to Mr Auty was a côtil, or sloping piece of land, below another piece of land called Le Clos du Four.  We note that there is nothing in the contracts put before us to describe or better identify the field Clos du Four, nor does the book and maps of Jersey Place Names by C G Stevens, J F Arthur and J C Stevens assist.  Nonetheless, at that time the predecessor in title to the defendant owned the bank and offset to the west towards the plaintiff's property Clairmont. 

10.      The description of the boundary between the plaintiff's property and the defendant's property as it appears in the defendant's contract of acquisition was fixed by a boundary contract (the "boundary contract") passed between the plaintiff and Mrs de Carteret, the predecessor in title of the defendant, before the Royal Court on 2^nd February, 2007, a month before the sale to the defendant.  The boundary contract makes no mention of any possible encroachments.  It settled a boundary but it simply did not deal with the possibility that as a result of that boundary line being settled, some of the defendant's property would encroach upon the plaintiff's property. 

The claims

11.      By her Order of Justice issued on 19^th February, 2010, the plaintiff claims that part of the property of Treetops encroaches onto her property, the particulars of which are:-

(i)        Part of the concrete block work retaining wall for a distance of 28.7 metres northwards from the north-westerly corner of the pool house forming part of Treetops. 

(ii)       The whole of a concrete block work supporting pier to the concrete block work retaining wall. 

(iii)      Part of the pool structure forming part of Treetops for a length of 4.9 metres from its north-westerly corner including the exposed foundations. 

12.      The plaintiff also claims that the Treetops property contains fenestration or openings within 2 feet 9 inches (imperial measurements) of the boundary line as follows:-

(i)        The fenestration to the pool house of Treetops is within 2 foot 9 inches of that line. 

(ii)       Five windows in the west elevation of Treetops are within 2 foot 9 inches of the boundary line. 

13.      Accordingly the plaintiff claims orders that the defendant remove the encroachments within such timescale as the Court may direct, with damages to the plaintiff for the wrongful encroachment until removal, plus costs on a standard basis and further or other relief as appropriate.  

14.      In its defence, the defendant admits the boundary contract but contends that any rights pertaining to Treetops were transferred by the vendor Mrs de Carteret to the defendant on the sale of the property to it.  The defendant asserts that the physical boundary between the properties Treetops and Clairmont was originally clear but that the owners of Clairmont had progressively excavated some of the bank at the expense of support for the superior land.  It was asserted that the historical boundary was never straight, but in its original form followed the clear line of an existing embankment.  It seems to be admitted that by the boundary contract recording a straight line between two boundary stones, a section of the defendant's retaining wall and pool house does encroach over the line. 

15.      Relying upon the attempts made over many years to settle the dispute in particular over the ownership of some trees close to the boundary, the defendant asserts that the boundary contract did not follow the conclusions of an informal arbitration carried out by the arpenteur Advocate Frederick Benest.  Thus it is said the boundary contract ought to be set aside on the ground of erreur.  By way of alternative, it was suggested that the plaintiff was guilty of dol in that she had deliberately led Mrs de Carteret to believe that the purpose of the boundary contract was to resolve the ownership of the trees between the respective properties, and she deliberately stayed silent in relation to the encroachments in order to obtain an unfair advantage over her.  It was asserted that the value of the land transferred by the boundary contract for little or no consideration meant that it is liable to be set aside on the grounds of déception d'outre moitié.  

16.      On all these grounds therefore the defendant claims that the Court ought to set aside the boundary contract. 

17.      It is also asserted by way of alternative that if the boundary contract were to be found valid, the result is that some of the retaining wall between the two properties comes into the ownership of the plaintiff. It is asserted that notwithstanding that ownership the plaintiff would have no right to remove or interfere with the wall so as to cause damage to the defendant's property, and reliance is placed on the law of voisinage and the defendant's right of support which would prevent the plaintiff from doing anything to her property which would interfere with that right. 

18.      As a further alternative, it is suggested that the plaintiff is prevented by equitable estoppel from taking the action further.  It is asserted that she intentionally led Mrs de Carteret to assume that the passing of the boundary contract would not affect the walls and openings and/or the location of the wall or openings.  Mrs de Carteret held a reasonable belief that any further difficulties would be resolved amicably by way of an award of realistic damages and as the plaintiff did not pursue this while Mrs de Carteret remained the owner of Treetops, she reasonably considered the matter to have been resolved and relying upon the plaintiff's lack of action, sold Treetops to the defendant.  The plaintiff, it is asserted, therefore acted unconscionably and was estopped from forcing the removal of the wall and changing the openings. 

19.      Next the defendant contended that in reliance on the maxim destination de père de famille, it was entitled to assert that any apparent encroachment should be allowed to remain even on the assumption that the boundary contract was valid.  

20.      The Court went on site and examined the properties of both the plaintiff and the defendant from the outside.  We heard evidence from the plaintiff, Advocate Dorey who acted for the plaintiff in relation to the conveyancing matters and Mr Paul Treliving, a chartered building consultant specialising in land survey who gave evidence on behalf of the plaintiff.  For the defendant, we heard from Mrs Rosemary Harrison, a joint owner of the defendant, from Mr Dereck Clackett, an engineering surveyor and from Mrs de Carteret, (formerly Mrs Dodds) who sold the property to the defendant.  We also had put before us a considerable amount of documentary material including evidence taken on commission from Carol Canavan, the solicitor for Mrs de Carteret and the various contracts of acquisition, some aerial photographs, correspondence between lawyers acting for the owners of Treetops and Clairmont from time to time and some expert reports.  We have considered all this material in coming to a conclusion in relation to the matters at issue. 

21.      The plaintiff told us that her primary case was that the boundary contract merely provided clarity to the location of the boundary which had previously existed between the two properties.  As far as the concrete block work wall (paragraph 11(i)) above) is concerned, she accepted that a greater part of the wall lies to the east of the boundary line but she asserted that it was nonetheless built too close to the boundary between the properties.  In addition, there were windows which were too close (see paragraph 12 above) and these should be made of opaque glass and not be capable of being opened.  She accepted that the dispute had its origins in difficulties between her parents and Mr Harry Lapidus, a predecessor in title of the defendant.  This arose out of Mr Lapidus' planning application for and later construction of some significant extensions to the property Treetops.  Her parents had objected to the extensions on the basis that they would have a detrimental impact on their privacy.  Notwithstanding objections to the Island Development Committee in relation to Mr Lapidus' application, planning permission was eventually granted to him and he constructed that extension.  Thereafter it is said that Mr Lapidus sought to provide support to the Treetops property by buttressing the bank and the wall which had been constructed.  The plaintiff's parents had objected because this disturbed the trees which they had planted by way of protection of their privacy.  At that point Mr Lapidus had asserted ownership over the entirety of the bank including the trees.  At one time Mr Lapidus sought to have the trees cut down to a height which allow more light into the bedrooms situated in the extension which he had built.  There was protracted correspondence between lawyers until eventually Mr Lapidus sold his property in 1977 and the issue of the exact line of the boundary and ownership of the bank and the trees remained unresolved. 

22.      There continued to be some correspondence on the issue of the ownership of the bank and the trees between Treetops and Clairmont when the former property came into the ownership of Mr and Mrs Dodds.  It appears the neighbours did not get on well.  According to the plaintiff, the noise levels emanating from Treetops increased markedly, and on their side, Mr and Mrs Dodds objected to the height of the trees.  These were sometimes cut back, according to the plaintiff, without either her or her mother's consent.  The difficulties came to a head in 1997 as a result of which a meeting between the neighbours and their lawyers took place.  According to the plaintiff, the parties reached agreement from which Mr and Mrs Dodds (de Carteret) subsequently resiled.  That position was not accepted by Mrs de Carteret.  The real arguments at that time centred not so much on the exact boundary line but on the trees.  For the plaintiff, they were an important part of her enjoyment of Clairmont because they acted as a barrier protecting her privacy and reducing the impact of the noise which would otherwise be heard from Treetops.  As far as Mr and Mrs Dodds were concerned, the trees were too high and the result was a reduction in light available to them in the extension which had been constructed on their property by Mr Lapidus. 

23.      The plaintiff commenced a Vue de Vicomte in 1999.  This meandered forward and the Vue de Vicomte was fixed for the autumn of 2001.  It was then postponed to early March 2002 following the death of the plaintiff's father but subsequently it was adjourned again, this time sine die, with an agreement that an arpenteur should be instructed to clarify the location of the boundary line using the measurements in the 1952 contract and the 1971 contract.  Unfortunately Advocate Frederick Benest, who was the instructed arpenteur, was not able to finalise where the boundary was, and could merely make recommendations as to where it could conveniently be settled.  This was not acceptable to the plaintiff. 

24.      The flow of correspondence between the lawyers continued, without any immediate effect.  By 2005 it was apparent following further site visits by conveyancers that there was a suggestion via Mrs de Carteret that Advocate Frederick Benest originally suggested there should be three boundary stones planted, the two that have actually been planted and a third one along the middle of the site at a point where the wall bulges.  The result would have been not a straight boundary line between the two stones which ultimately were settled as fixing the boundary, but instead a line which went from the most northerly stone in a south-southwest direction to the second stone, and from the second stone in a south-southeast direction to the third stone.  The probable advantage of such a boundary of course was that there would be no encroachment.  That Mrs de Carteret was aware of the effect of such an agreement is clear because her lawyer, Mrs Canavan wrote to Advocate Dorey to suggest that the contrat de transaction should include wording to the effect that the structures belonging to Treetops would be permitted to remain as they were even if they did encroach over the boundary line.  The plaintiff did not agree that and Advocate Dorey responded to Mrs Canavan to make that clear.  The plaintiff's position was that the boundary line should be established and any issues of encroachment could be dealt with later. 

25.      The dispute between the neighbours then entered a quiet period for 18 months or so until the beginning of 2007 when the plaintiff discovered that Mrs de Carteret was about to sell Treetops.  This concerned the plaintiff because she thought she had an agreement for a boundary line and did not want to have to renegotiate with somebody else.  She threatened to resurrect the Vue de Vicomte which no doubt might have affected Mrs de Carteret's sale of Treetops.  In the event, there was further liaison between the lawyers and the boundary contract was eventually agreed and passed on 2^nd February, 2007.  It contained no provision which would allow any encroachments to remain and there were no rights of access granted to the owner of Treetops over Clairmont for the purposes of maintenance.  A month later, Mrs de Carteret sold Treetops to the defendant. 

26.      In her witness statement, Mrs de Carteret asserted that she was disappointed with the proposed boundary line which Advocate Frederick Benest suggested in 2004 because she had hoped that the trees would have been found to be on her land.  By 2005 she had separated from her husband and she was desperate to sell Treetops.  Interestingly, she says in her witness statement that in 2007 it became clear that the High Hedges legislation was coming into force, which was before or about the same time as the defendant agreed to purchase Treetops.  That seems to suggest that at least Mrs de Carteret, and possibly the defendant, intended to rely upon the High Hedges legislation for the purposes of securing an executive order that the trees be reduced in height.  As the trees were the focus point of the dispute over the boundary line, it may be that the boundary line was no longer perceived to be so important.  At all events, as far as Mrs de Carteret is concerned, she gave instructions to enter the boundary contract on the basis that the Treetops wall was not on the plaintiff's land but on hers, and as far as she was aware, no one had suggested the wall be demolished. 

27.      We will come on to the question of the encroachments shortly, but for present purposes it is right to record that there has been very little factual dispute in the evidence put before us.  In truth, the correspondence speaks for itself.  That there was an unpleasant dispute going on for many years in relation to the height of the trees and the precise identification of the boundary line is absolutely clear.  The terms of the boundary contract are absolutely clear.  The reality of the defendant's position is not that there is any dispute about the facts but rather that the consequences of the boundary contract are so severe that for one reason or another, the Court ought to make an order which grants the defendant relief from them. 

28.      We turn now to the expert evidence.  We heard from Mr Paul Treliving who is a chartered building consultant specialising in land survey.  He presented to the Court a report dated 21^st December, 2009, which reflected his opinion.  The Court accepted him as an expert.  He said this was a very straightforward exercise.  He prepared a plan which does not contain a definitive feet and inches description of the encroachments but, taking the boundary contract and the position of the two boundary stones as fixing the boundary between two properties, he was able to show on his plan the Treetops' encroachments on to the land of Clairmont.  He meant by this those parts of the Treetops extension which amounted to a physical encroachment over the boundary line established by the boundary contract.  He went on to say that if the retaining wall of Treetops had a relief or offset, he thought the whole of the retaining wall would encroach.  There was no cross-examination of him, and the Court has taken it that his evidence was substantially accepted.  The dispute was not the facts flowing from the boundary contract as much as the validity of that contract itself. 

29.      We also heard from a Mr Dereck Francis Clackett who is an engineering surveyor.  He had given no witness statement in advance.  Mr Treliving did not have the opportunity of reviewing what Mr Clackett was to say, and the Court made it plain that it would give leave to recall Mr Treliving if that should be necessary.  No such application was made.  In essence the evidence of Mr Clackett was that he had been instructed to carry out a topographical survey of Treetops using the boundary as established by the 1971 contract.  As a result, he felt able to say that the boundary stones in the boundary contract were planted further to the west of Treetops than previously had been the case.  It was clear that he had taken his measurements not from the edge of the bank on the road of La Ruelle de St Clair after it made the bend at the western edge of the plaintiff's property but instead had taken his measurements from the relief of the bank, which was accordingly set in his view as 16½ imperial inches into the road.  He agreed with Advocate Benest that if one took a measurement from a different place, one would end up in a different place, and of course that is self-evident. 

Discussion

30.      For many centuries the structure of the laws affecting land and succession in Jersey was such that contracts of sale were relatively uncommon, but nonetheless it remains true that from time immemorial, transactions in land have been completed by means of a contract sworn by the contracting parties before the Royal Court.  Having confirmed with the parties that they are aware of the contents of the deed, the Bailiff (or the Deputy Bailiff or Lieutenant Bailiff) administers the oath to the contracting parties - "Do you swear that you will neither act nor cause anyone to act against this deed of [sale of house outbuildings and appurtenances] in perpetuity upon pain of perjury?"  It is the act of taking that oath which completes the transaction in real estate and the Court then has the original contracts enrolled in the Public Registry where they are available for inspection by everyone.  The original deed is then returned to the transacting party, but has no intrinsic value.  Accordingly, a person is able to ascertain the ownership of Jersey real estate by a check in the Public Registry of this Island; and because the practice is to ensure that there is included within the contracts passed before the Royal Court a full description of the property which is the subject of the transaction, with its boundaries and servitudes affecting it, the Public Registry search establishes certainty for those who are transacting in other respects with the landowner in question.  Wills of real estate are similarly registered on the death of the testator; as are contracts of division of inherited estate.  It is true that there is sometimes a potential gap in respect of property inherited by the sole and principal heir on intestacy and in respect of undisturbed occupation of property for 40 years nec vi clam aut precario, but these exceptions as it were prove the rule that the general policy is to look to the Public Registry for proof of title.  These simple conveyancing procedures form the rationale for the maxim nul servitude sans titre. 

31.      Of course it is possible for contracts which are passed before the Royal Court in the form which we have identified to be the subject of an order by the Court for rectification on the usual grounds, or on occasion to be set aside in their entirety on any ground which would give rise to an ordinary contract being set aside.  The fact that the subject matter of the contract is land as opposed to anything else does not mean that the ordinary law of contract does not apply.  Of course it does.  Indeed the Privy Council proceeded on that basis in Snell v Beadle [2001] JLR 118, when the customary principle enabling a contract to be set aside on the grounds of déception d'outre moitié de juste prix was accepted as a dol réel sufficient of itself to have the contract set aside.  The fact that there was argument in that case as to whether the principle related only to sales of land or could be extended to sales of a right of servitude is immaterial for the purposes of the principle we have just set out.  Indeed in the judgment of the majority at paragraph 54, Lord Hope makes it plain that a contract could also be set aside where there was a dol personnel, but it is of interest that in doing so, Lord Hope expressed himself thus:-

"53. The fact that, if the remedy for déception d'outre moitié applies, it remains available under the law of Jersey for a period of 30 years from the date of the transaction, requires that particular attention be paid to the concept of the juste prix. If the parties to a transaction are to be subjected to risk that the remedy may be invoked over such a long time period, there is an obvious need for this to be capable of being determined objectively at the time when the transaction was entered into by means of reliable and independent evidence. Where that evidence is not only lacking, as it is in this case, but is incapable of being provided because the transaction was such that there was no other way by which the parties could determine the price for it at the time than their own estimate of what it was worth, there is a strong case for holding that the remedy for déception d'outre moitié de juste prix does not apply to it. If it were otherwise, a situation of great uncertainty would result. It would lay bargains which were entered into in good faith open to the risk of being set aside on the ground simply of a change of view by the vendor after the event that he could extract a higher price for the property than he originally asked for from the purchaser. That would be contrary to the underlying principle which is expressed in the maxim la convention fait la loi des parties.

54. Their Lordships have not overlooked Hoffman, JA's observation in Re Barker (1985 - 86 JLR at 195) that the Court should endeavour to do justice according to the notions of our own time. But the fact is that Mrs Beadle is seeking to invoke an ancient doctrine which few legal systems of our time have accepted.  It runs counter to the general principle that where parties of full age and capacity contract with each other freely and without any element of dol personnel, they should be held to their contract. It is not generally recognised to be just, according to the notions of our time, that such a contract should be at risk of being re-opened for 30 years simply because it occurred later to one of the parties that he or she would have been able, by asking for more, to obtain more than twice the price that was agreed to".

32.      No doubt for these policy reasons, the majority of the Privy Council in Snell v Beadle took the view that the principle of déception d'outre moitié should be contained such that it did not apply to the sale of the servitude in that case.  In reaching that conclusion it is clear that the principle of ensuring certainty of land ownership is an important consideration. 

33.      There is more than just that certainty principle involved.  Where parties to a transaction freely come to Court and take an oath to abide by the terms of the contract upon pain of perjury, it is unthinkable for a Court to pay only lip service to that act.  The principles underlying la convention fait la loi des parties are given added impetus by the fact that the contracting party has sworn on oath to abide by the terms of the contract.  Such contracts can be set aside on the usual grounds of dol, erreur or lésion, because all those principles go to the fundamental free will or volonté of the contracting parties; but, that apart, what is found in the Public Registry can be relied upon. 

34.      Central to these principles is that the right of action to set aside a contract on the grounds described is a right which vests in the contracting party.  It is not a right which accrues to anyone else.  As a matter of law, we reject the contention that any rights which Mrs de Carteret had to have set aside the contract with Ms Fogarty on the grounds of dol, erreur or déception d'outre moitié are capable of being transferred to her successors in title.  Furthermore, on the facts of this case and having regard to the deed of sale between Mrs de Carteret and St Martin's Cottage Limited, even if they were capable of being so transferred, which we think was impossible, they were not in fact transferred.  There is no language in the contract which would suggest that they had been passed to the purchaser.  Reliance was placed on the following language in the deed of sale:-

"The property was sold with all and any other rights, appurtenances and dependencies as may attach thereto and in its present condition with all its apparent or hidden defects, (vices cachés), if any, and is situate in the Parish of St Lawrence, Vingtaine du Coin Hatain.

The purchaser was bound to conform to all clauses, conditions and restrictions to which the vendor was subject for and on account of The Property, to which she was entitled both jointly with Barrie Maclean Dodds by contract dated 3rd May 1996 from John Clifford Farley and Jeannie Diane Buchan Farley née Goodacre, his wife, as well as by the hereditary sale, cession and transfer to her of his proprietary rights by Mr Dodds by contract dated 19th December 2003 ..."

35.      As to the first of those two paragraphs, it does not seem to us that the ability which Mrs de Carteret had to attack the boundary contract on the grounds of erreur or dol was a right which attached to the property Treetops.  It was a personal right available to Mrs de Carteret, to the extent it existed at all.  It is true that the subject matter of the boundary contract was a real property right - the boundary contract established, in perpetuity, the boundaries between the neighbouring properties.  However, the fact that the subject matter might have been real estate does not mean that the right to rely on the legal principles which enable a contracting party to assert that the volonté to enter the contract was displaced (such as erreur or dol) is anything other than a personal right.  It seems to us this flows from the analysis of the rights in question, but it is supported by the policy consideration that the Public Registry should as far as possible provide certainty in relation to the ownership of land in Jersey - see for example Nicolle v Stark (1858) reported in Le Gros "Traité du Droit Coutumier de l'Ile de Jersey" (1943) at page 17 and applied in Felard Investments and trustees of the Church of our Lady, Queen of the Universe (No 2) [1979] JJ 19.  Nor is there anything in this first paragraph of the extract from the contract to suggest that the rights of the vendor (Mrs de Carteret) against the plaintiff, if any, had been sold to the defendant.  When contracts were drafted in the French language, this was the "Le Tout, tel qu'il est" clause which was considered in Kwanza Hotels Limited v Sogeo Company Limited [1981] JJ 59 at page 77.  We do not consider this language is apt to transfer such personal rights as the vendor had, if any, even if they were capable of being transferred without the consent of the plaintiff, which we find not to be the case. 

36.      The second paragraph from the extract from the deed of sale set out above is a standard form of wording which is to be found in contracts for the sale of land in Jersey and which introduces the title of the vendor to sell.  It makes it clear that the vendor does not retain any obligations once the property has been sold.  The purchaser takes the property as he finds it.  All those obligations are the basis of the purchaser's contract of acquisition.  It is not language which confers on the purchaser any of the vendor's rights - save where the contract itself makes that clear.  Thus routinely contracts for the sale of real estate distinguish those rights and obligations which run with the land by the use of express language to that effect.  In such cases the obligations of the vendor in this respect are servitudes, and these are passed on to the purchaser. 

37.      In our judgment therefore, the defendant is not able to rely upon any of the causes of action which Mrs de Carteret might have had against the plaintiff, from which it follows that the substantive defences would fail even if Mrs de Carteret had had such rights.  

38.      This conclusion seems to us to be supported by the fact that the defendant itself, through its officers, took oath before the Royal Court to comply with the terms of the contract of acquisition.  That contract included references to the boundaries as established by the boundary contract.  The defendant company was independently represented, and its lawyers presumably attended to the various formalities and researches required before advising the defendant on its purchase.  For all we know (Mrs Harrison's evidence to the contrary being untested in cross-examination or by other evidence from Advocate Slater), the difficulties with the boundaries may have been explained to the owners of the defendant company.  It would be truly extraordinary if that were so and notwithstanding that fact, the defendant company were then able to strike down part of its own purchase simply because its predecessor in title might have had a claim against the plaintiff in respect of the boundary contract.  As between Mrs de Carteret and the defendant, there is no suggestion of any impropriety.  Mrs de Carteret had passed the boundary contract and the draft deed of sale of Treetops was sent to the defendant company's lawyers for approval and subsequently that was reflected in the contract passed by Mrs de Carteret and the defendant company before the Court. 

39.      In fairness to the plaintiff, given that allegations of dol and erreur have been made against her, we think we should go on to say that the defendant company has not established such allegations on the facts in any event. 

40.      The boundary contract was passed before Court on 1^st February, 2007.  For the purposes of that contract, the plaintiff was represented by Advocate Caroline Dorey.  Mrs de Carteret was represented by Mrs Carol Canavan.  We have been shown some e-mail traffic, correspondence and file notes in relation to the contract. 

41.      The sale of Treetops to the defendant took place on 2^nd March, 2007.  Advocate Stephen Slater acted for the defendant in acquiring the property.  Privilege has not been waived, or if it has, we have not seen the relevant documents, in relation to the advice given by Advocate Slater to the defendant.  We have however been shown some correspondence between Advocate Dorey and the beneficial owners of the defendant company, and subsequently with Advocate Slater, from 10^th April, 2008, through to 19^th February, 2010. 

42.      In addition, we have had evidence from Mrs Canavan - she was not in the Island at the time of hearing and accordingly we have a transcript of her evidence and a DVD.  We also have heard directly from Advocate Dorey. Advocate Slater has not been called to give evidence. 

43.      We record that we also heard evidence from the arpenteur Advocate Frederick Benest, who was retained by the plaintiff and by Mrs de Carteret in 2002 for the purposes of establishing the boundary between the respective properties.  Perhaps the only parts of his evidence which might be regarded as material in this context are:-

(i)        In October 2002 he wrote to Advocate Dorey and Mrs Canavan explaining why he thought it was impossible to fix the boundary between Treetops and Clairmont by relying upon the approximate measurements contained in the title to the two properties.  

(ii)       He agreed that the present width of the road, Ruelle de St Clair, could not be relied upon in taking any measurements. 

(iii)      Property abutting a parish road has a customary relief for he had suggested the positioning of three boundary stones with a view to establishing a boundary which would not result in any part of the defendant's property encroaching upon the plaintiff's property. 

44.      Advocate Benest's retention as arpenteur had arisen with a view to settling the Vue de Vicomte.  His advice that it was not possible to fix the boundary by reference to the respective contracts, and his advice as to the way in which the matter might be settled, was not accepted.  His involvement is therefore only of peripheral interest as it forms the backdrop to the planting of the boundary stones and the arrangements which were made which later culminated in the passing of the boundary contract. 

45.      It is convenient at this point to refer to another contention of the defendant, namely that the boundary contract referred to boundary stones which are without offset (sans relief) and that because the wall was in existence when those stones came into being, the Court can imply into the boundary contract an agreement by the parties to it there was a right to join to them. 

46.      In our view, this imaginative contention is hopeless.  We assume without deciding it that a boundary stone is a structure which can have an offset or relief, even though it is perhaps unlikely that this could ever have been contemplated in our customary law.  In the case of this boundary contract, it is clear that there could have been no offset because the boundary line is described as an imaginary straight line taken along the eastern faces of the two boundary stones; but in any event the acknowledgement of boundary stones without offset does not imply anything in relation to a right to join (droit de jointure).  The customary law rule is that all walls have an offset, or relief, of one and a half feet.  Unless there is some provision which is inconsistent with that principle, the offset or relief must be allowed.  A right to join would be so inconsistent, but the fact that there is a boundary stone without offset belonging to the neighbour is not.  Indeed, the ownership of the boundary stone without offset and the creation of a boundary line would not exonerate the neighbour of the obligation to allow for a relief or offset if he were constructing a wall within his property.  Furthermore, the very notion that there is to be implied a right to join a wall to a boundary stone has an incongruous feel to it.  This right is created in order that neighbouring owners can have mutual support for their walls or gables and clearly a wall and a boundary stone do not provide mutual support.  For all these reasons, this part of the defence is rejected. 

47.      In September 2004, Mrs Canavan e-mailed Advocate Dorey to indicate that Mrs de Carteret was actively trying to sell the property.  Mrs Canavan suggested that it would be helpful for the trees to be cut back to a height which did not deter prospective purchasers and the boundary could be clarified in the deed of sale.  After taking instructions, it is clear that Advocate Dorey was instructed to agree in principle.  The boundary stones were to be put in and contract to be passed.  She noted that she would need to attend on site with her conveyancing clerk.  That attendance did take place and it would seem that the two boundary stones were put in approximately where Advocate Benest had suggested in 2002.  However, it is clear that when the conveyancing clerks of Advocate Dorey and Mrs Canavan attended on site, they realised that there was a distinctive bow in the wall forming part of Treetops and that it was impossible to see the line between the two stones.  It was suggested that another stone should be put in, where the bow in the wall is clearly visible, to make sure there was no encroachment and by e-mail to Advocate Dorey on 29^th April, 2005, Mrs Canavan pointed out that there was already an unused stone there which she thought that Advocate Benest might have taken up with him in the hope of settling the boundary.  Advocate Dorey took instructions from the plaintiff which included Mrs Canavan's suggestion that another stone should be put in where the bow in the wall existed to make sure there was no encroachment.  An e-mail from Advocate Dorey six days later makes it plain that she had spoken to the plaintiff who had an expressed preference for two stones, one at the south and one at the north.  It was suggested that if there is an imaginary straight line, then there would then be an established boundary. 

48.      An internal memorandum between the conveyancing clerk and Mrs Canavan dated 19^th July shows that the clerk expressed this view:-

"It is impossible at present to strike a line between the two stones due to trees etc., therefore, in my opinion it is essential that a clause be included in the deed of arrangement to the effect that the walls and buildings erected along the west limit of Treetops may remain as at present established, notwithstanding that they may perhaps encroach over the new boundary line between the two stones. If they do encroach, then Mrs Dodds would not have a contractual right of access on the adjoining property to maintain the same.

If neighbour is not prepared to agree that the aforesaid provision is included, then on going difficulties are likely to occur."

49.      Mrs Canavan accepted that advice and wrote in similar terms to Advocate Dorey on 27^th July, 2005.  She received the reply on 9^th September, 2005, that the parties had reached agreement that Advocate Benest would determine where the two boundary stones were to be placed and that the boundary would be a straight line between the two.  It was suggested that it was that agreement which needed to be implemented.  Perhaps understandably, at that point, no further action was taken and the boundary remained unsettled. 

50.      In her evidence, Mrs Canavan was asked about the instructions she took from and advice she gave to her client Mrs de Carteret in relation to the boundary contract.  She agreed that it was silent in relation to the encroachment.  She agreed that there was no clause which forgave the encroachments or allowed any rights of access.  She agreed she had reviewed the final draft before it was passed and that she would have gone through it with Mrs de Carteret.  She agreed she would have approved the final draft in consultation with Mrs de Carteret and that she would have noted that it did not contain any clauses dealing with encroachment or maintenance.  She was then asked by Advocate David Benest whether she had advised Mrs de Carteret that it was in order to pass the contract notwithstanding the fact that Mrs Canavan's firm had previously described the inclusion of such clauses as essential.  Mrs Canavan indicated that she did not give that advice.  The advice which she gave Mrs de Carteret was apparently that Mrs de Carteret really had a choice of options - either pass the contract without the clauses without any rights to maintain etc, or do not pass it.  Mrs Canavan said she explained what the contract meant and what the missing information or the missing clauses meant, and she was instructed to go ahead.  As far as Mrs Canavan was concerned, Mrs de Carteret was aware that when the boundary contract was passed, it did not deal with the potential encroachments.  She confirmed that Mrs de Carteret would have received copies of all the correspondence between Advocate Dorey and her firm. 

51.      When Mrs de Carteret gave her evidence to us she told us that there had been a long running dispute which went nowhere in fifteen years.  She was told that she could not sell her house unless she had a clear boundary.  She was very unhappy with the outcome of the boundary contract because that meant she did not own the trees, but she was desperate to move.  She did not remember any discussions as to whether the boundary wall would be an encroachment once the boundary contract was passed.  She had no clear recollection of this matter because the boundary contract was passed eight years ago. 

52.      In cross-examination she said again that she was anxious to have the dispute settled.  As far as she was concerned the dispute was about the trees and not about the wall.  She said there was no possibility that she would have passed the boundary contract as it was passed if she had thought there would be such an encroachment.  However, although she did not recall being given advice by Mrs Canavan she had no reason to believe that what Mrs Canavan said was incorrect. 

53.      In our view the position in relation to the boundary contract is quite straightforward.  Both parties to that contract were advised fully about the consequences of the contract.  Both parties agreed that the contract should be passed in the form it was.  There is no question that there was any misunderstanding about the essence of the boundary contract.  It is possible, indeed likely, that Mrs de Carteret did not focus upon one of the consequences which passing the boundary contract might entail, namely that there might be one or more encroachments which could cause her difficulty in the future if she retained the property.  We think she was desperate to sell and she knew the boundary had to be settled in order that she could do so.  She possibly did not fully appreciate the potential consequences, but in our view, there is no doubt at all that she was aware of what the terms of the boundary contract were. 

54.      We now turn to the position of the defendant.  We heard evidence from Advocate Dorey, and have seen a file note to similar effect, that on 27^th February, 2007, which is some three or four days before the sale of Treetops to the defendant, Advocate Dorey spoke to Advocate Slater.  She advised him, entre collègues, just by way of reminder, that he should check the boundaries carefully.  She flagged up for him that he needed to be aware that there was a contract of transaction (the boundary contract) recently passed dealing with the boundary. 

55.      We do not think there is much to be gleaned from this exchange between Advocate Dorey and Advocate Slater.  Advocate Dorey's words to him merely confirmed something of which he no doubt was already aware, namely that it is an advocate's duty to check the boundaries carefully and advise a client on a prospective purchase whether the sale contract reflects what the purchaser was expecting to acquire, and whether there are any relevant servitudes, restrictions or encroachments.  We do not know whether Advocate Slater gave that advice to the defendant or not and express no view on that. 

56.      What we are clear about is that the plaintiff has not in any sense acted dishonestly or slyly.  She has always been perfectly plain about what she was prepared to agree.  One may well take the view - and indeed the Court takes the view - that she was unyielding and unreasonable in her approach, but, that criticism apart, she cannot be criticised for any form of fraud or dishonesty.  In our view, there is no basis for asserting that any of the normal grounds upon which a contract might be set aside would have been available to Mrs de Carteret following the passing of the boundary contract, had she remained the owner of Treetops. 

57.      We add that we have no evidence to suggest that there was any deception on Mrs de Carteret's part either.  It was Advocate Slater's job to check the title and boundaries and advise his client.  Either he did that appropriately, in which case the defendant took the risk on completing the purchase, or he did not, in which case the defendant may have a cause of action against him.  We have no evidence on that issue, which does not arise in these proceedings. 

58.      In the course of its submissions, the defendant asserted that the boundary contract clearly established a new boundary.  Advocate Falle addressed us as to why this was so.  We do not find this to be a particularly helpful analysis.  In our view, it is probably right that the boundary between Treetops and Clairmont was previously not in the same place in which it is now to be found pursuant to the boundary contract.  The probability is that that is the nature of a boundary contract in every case, because if the boundary could be clearly established, there would be no need for such a boundary contract.  We start from the proposition that the requirement for a boundary contract arose because the boundary was not clear, and that being so, there is no reason for thinking that it must necessarily have been in the same place as the new contract provides.  In our judgment, there are no particular conclusions to be drawn from that in so far as the validity of the boundary contract is concerned.  For what it is worth, our own view, taken from an analysis of the contracts and our attendance on site, coupled with the aerial photographs, is that the boundary once followed the natural topography of the land albeit one cannot now say clearly where that was. 

59.      The premise that the boundary used to be somewhere else formed the bedrock of a number of submissions made by the defendant on points of law.  We shall take first the submission that on the application of the doctrine of "destination de père de famille" the Court ought to deny the plaintiff the remedy which she seeks.  The principles of destination were considered in Le Feuvre v Matthew [1973] JJ 2461 and [1974] JJ 49.  This principle is generally applied in the context of servitudes.  For the purposes of this case, it amounts to an argument that even if the new boundary, as established by the boundary contract leaves part of the defendant's wall encroaching on the plaintiff's property then as a matter of law the defendant is entitled to a servitude which permits that encroachment to remain.  Reliance for this purpose is on Article 228 of La Coutume Reformée which, based on La Coutume d'Orléans is in these terms:-

"Destination de père de famille vaut titre, comme délai, ou arresté par écrit, et non autrement".

60.      The doctrine arises where two properties are in the same ownership, but on division one can take as assumed by the law that the respective properties would each have the necessary rights over the other in order to maintain the use of the properties as had previously been enjoyed - generally this would be treated as rights of drainage, electricity, rights of way and so on.  Thus the Court in Le Feuvre v Matthew referred to Hoüard, "Dictionnaire de la Coutume de Normandie" (1870), (sic), destination is defined at page 486 as follows:-

"C'est par la destination qu'un père de famille a faite d'un effet mobilier, qu'il devient souvent immeuble ... c'est aussi par elle que l'on juge si un bâtiment, et terrain est ou non une dépendance d'un legs, ou d'un préciput ..."

61.      In some of the English cases, the expression "necessary dependence" has been used.

62.      It is interesting to note that while, as set out in Le Feuvre v Matthew (supra) the principle of destination de père de famille is based on the presumed intention of the parties, here it is impossible to draw any presumption because, on the facts, Mrs de Carteret simply wanted to get her boundaries settled so she could sell her property, and the plaintiff was absolutely determined not to agree any presumed servitudes on the basis that encroachments would be sorted out later.  In the light of such a finding on the facts, we cannot conclude that the doctrine of destination de père de famille is relevant in this case. 

63.      In any event, the principles underlying destination de père de famille apply when a single property is divided into two separate properties, such that the rights which might be implied on such a division can be treated as created.  The division, as a result, would not leave either property denuded of its rights to maintain and replace existing services. 

64.      These principles do not apply here because the building forming part of Treetops and the dividing wall did not exist when the single property including what is now both Treetops and Clairmont was divided.  The boundary contract is not such a contract as divides the property in single ownership as to create two properties.  It is as it is described - a boundary contract establishing the line between two properties which already exist. 

65.      The defendant contends, whether on the grounds of proprietary or equitable estoppel that the plaintiff ought not to be entitled to the remedy which she seeks.  As in the case of Flynn v Reid [2012] (1) JLR 370 this Court considers that the better conclusion is that the doctrine of proprietary estoppel is not part of the law of Jersey, and would align itself with the approach of the Court in Felard Investments Limited (supra) if a decision were necessary.  However, it is not necessary because, again on the facts, one cannot say that there has been any conduct by the plaintiff which encouraged the defendant to the belief that there was a right to maintain the encroachments.  First of all, the plaintiff had no relationship with the defendant for this purpose at any material time.  The extent of the relationship was a warning, prior to the defendant completing the purchase, given by the plaintiff's lawyer to the defendant's lawyer that he should check the boundaries carefully.  One can hardly construe from that that there was any encouragement or representation that all would be well - quite the reverse.  One cannot therefore say that the defendant has acted to its detriment on the basis of a belief or representation encouraged or given by the plaintiff.  Nor can it be said that Mrs de Carteret could have brought such a defence either.  The defendant's contention is that there was a written agreement to abide by the opinion of Advocate Frederick Benest, as arpenteur.  That may well have been so but the basis of that agreement was that the parties would abide by the decision of Advocate Benest as to where the boundary was, and Advocate Benest said it was impossible to determine that question.  The fact that he made a proposal as to where the boundary should be is beside the point, because neither party agreed to be bound by his opinion as to where the boundary should be. 

66.      Furthermore, it is clear that Mrs de Carteret's lawyers were well aware of the need to ensure that there was written into the boundary contract a provision that the encroachments could remain as they were, and yet that could not be successfully negotiated with the plaintiff.  It is impossible in those circumstances to say that Mrs de Carteret relied upon any representations made by the plaintiff.  

67.      Then it is said that the Court should apply the doctrine of voisinage so as to deny the remedy the plaintiff seeks.  This submission is based upon the established law that a neighbour must not use his property so as to damage neighbouring property - see Rockhampton Apartment Limited and others v Gale and Clarke [2007] JLR 332.  It is said that when the boundary contract was passed, it was deliberately silent in relation to the existing structures.  It is said that a new boundary was created subject to a tacit agreement that the encroachments would not be removed.  On the facts, we find against the defendant on that point.  The plaintiff expressly required the issue of encroachments should stand over for attention later. 

68.      The doctrine of voisinage is also sought to be applied upon the proposition that the plaintiff or her predecessors excavated the bank adjacent to the wall in question causing it to move over the boundary line, or indeed that she or they otherwise undermined the wall.  This is said to have been a breach of the principle of voisinage, and it is contended that as a result she should not benefit from her conduct by now demanding the encroachments be removed.  We do not find on the facts that have been presented to us that the plaintiff or her predecessors have done any such thing.  The evidence is simply not sufficiently substantial for us to reach such a conclusion, and we do not do so. 

69.      Accordingly, we find that the plaintiff's Order of Justice is established to the extent that the defendant's property Treetops encroaches upon the plaintiff's property as set out in paragraph 5 of the Order of Justice.  We also find that the defendant's property Treetops contains fenestration/openings which are within two foot nine inches of the boundary line, in breach of the Island's customary law. 

70.      In her Order of Justice, the plaintiff asserts that the defendant has no legal right to maintain the encroachments and that she is entitled to have the same removed.  The prayer of the Order of Justice requests that the defendant be ordered to:-

(i)        Remove all such encroachments within such timescale as the Court may order. 

(ii)       Pay damages to the plaintiff for the wrongful encroachment until removal. 

(iii)      Pay the plaintiff's costs to be taxed on the standard basis. 

(iv)      Such further or other relief as is appropriate. 

71.      In its defence, the defendant contends that if all other defences fail, nonetheless the Court can determine to award damages in lieu of an order for the removal of the encroachments.  It is to that issue that we now turn. 

72.      The plaintiff's contention is that the Court has no jurisdiction to award damages for an encroachment of the kind which we have found to be established in this case, and that, by way of alternative, if there is such jurisdiction, the Court in its discretion ought not to exercise it, but rather should order the encroachments to be removed.  We deal first with the jurisdiction issue. 

73.      The plaintiff's contention relies heavily upon the decision of this Court in Felard Investments Limited v Church of Our Lady Queen of the Universe (No 2) [1979] JJ 19 at pages 21 - 26.  In that case the Court had rejected the doctrine of proprietary estoppel which it found was not part of the law of Jersey, and it was faced with a building which breached a building restriction agreed between the parties by contract.  In his closing submissions, Advocate Benest suggested that the basis of the decision in Felard was as follows:-

(i)        The restrictive covenant was a servitude réel owed by the property of Felard to the property of the Church;

(ii)       The Court was being asked to legalise a breach of servitude of which the Church had benefit against the wishes of the Church;

(iii)      The maxims nul servitude sans titre and promesse a héritage ne vaut operated so as to prevent the Court from being able to enforce specifically an agreement to create or extinguish a servitude and "still less can the Court create or extinguish a servitude against the wishes of the owner of the land affected where there has been no such agreement ...";

(iv)      The award of damages in lieu of removal would effectively amount to an order extinguishing the servitude against the wishes of the party which had the benefit of it;

(v)       Given the matters aforesaid it necessarily followed that the Court had no power to award damages in lieu of removal. 

74.      We think this is a fair summary of the basis of the Court's decision in that case.  We might add that comparing that rationale with the instant case, there is no servitude réel owed by the property Treetops to the property Clairmont; the Court is not therefore being asked to legalise a breach of servitude against the wishes of the owner of Clairmont; no servitude is being created or extinguished; and it thus follows that the award of damages would not have the effect of amounting to an order extinguishing the servitude against the wishes of the party which had the benefit of it. 

75.      On these grounds, we could, so it seems to us, distinguish the position in Felard Investments Limited, and we would do so.  It seems to us that there is a substantial difference between a circumstance where two parties have attended in court to agree a servitude affecting the properties in question which is subsequently breached, and a circumstance where two parties come to court to agree a new boundary line which in part, by its creation, establishes encroachments which hitherto cannot be said to have existed.  In the former case, one of the property owners created the encroachment notwithstanding agreement that he should not do so; in the latter case, the objet of the contract was the creation of a boundary line, which it must be said has been respected, and there was no deliberate or even inadvertent creation of an encroachment in the knowledge of an existing restriction.  

76.      However, we prefer to decide the jurisdiction point on other grounds and in our judgment, we would respectfully depart from this part of the decision of the Court in Felard Investments Limited in any event.  We note that the only other occasion on which it appears to have been considered is Ernest Farley and Sons Limited v Takilla Limited (1989/22), a decision of the Court of Appeal on 11^th May, 1989.  At paragraph 70 of the judgment the Court said this:-

"When granting relief for the breach which they found of clause 6 of the contract, the Royal Court said they would, if free to do so, have considered substantial damages a proper remedy, but under the decision in Felard Investments Limited v Trustees of the Church of Our Lady Queen of the Universe (1979) JJ 19 they had no power to award damages in lieu of an order for removal.  Mr Mourant expressly disclaimed any challenge to the Royal Court's decision on this point.  We too should have considered damages, if such an order were legally available, an adequate remedy for the breach of clause 3, but in view of Mr. Mourant's attitude we have not pursued the point.  We therefore express no view upon it, beyond stating that both the decision in the Felard Investments and the extent of its operation remain open for consideration in this court."

77.      In his closing submissions, Advocate Benest suggested that the Takilla decision does no more than confirm that Felard Investments is and remains the law of Jersey.  We do not read the Court of Appeal's decision in quite the same way.  In our view the Court of Appeal certainly stated expressly that given counsel's concession, the issue was not being considered.  It was not necessary for the Court of Appeal to raise this at all, but the fact that it did so, and then expressly stated that the point was open for consideration, might be taken to imply at least that on this point Felard Investments was not necessarily correctly decided. 

78.      We think this is unsurprising.  Cases are brought before the Court for a remedy for what is asserted by the plaintiff to be an injustice committed against him.  The starting point for any court is that it has a discretion as to the remedy which ought to be granted to a plaintiff and indeed whether to grant any remedy.  In a sense, that is an inherent element of acting as a court - the job of the court is to do justice and the notion that there is only one remedy for a particular complaint seems to us to suggest at least in theory that the Court would not always be able to do justice.  The use of Latin in legal documents and in judgments is in some places discouraged these days, but a reference to the old maxim that de minimis non curat lex (the law takes no notice of trivialities) emphasises that this particular principle has been in existence for a very long time indeed.  Simply because a building restriction had been breached by a matter of an inch or two should not leave a court powerless to do other than order the entire building to be removed.  In our judgment it would take some very strong reasoning to reach the conclusion that the Court had no jurisdiction to deal with a trivial breach of property law by an award of damages.  After all, the Royal Court is a court of inherent jurisdiction.  It used to have the jurisdiction to pass legislation.  As recently as Bastion Offshore Trust Co Limited v Finance and Economics Committee [1994] JLR 370 the inherent jurisdiction of the Court was affirmed in relation to procedural matters, and it seems to us that the remedy which a court allows for a breach of the law is itself a procedural matter.  Whether that is or is not so, the fundamental purpose of the Court is to do justice and we think that necessarily involves the choice of an appropriate remedy as a matter of discretion from case to case. 

79.      We now turn more directly to the reasoning of this Court in Felard Investments. 

80.      In the first judgment in the Felard case, the Court reached the conclusion that the building restriction in question had not been extinguished and that it would not apply the principles recognised in the courts of England and Wales as forming the doctrine of proprietary estoppel.  The Court said that it considered that there was a distinction without a difference in saying that the covenant had not been extinguished but that the defendant was estopped permanently from enforcing it, because the effect of the estoppel would be to extinguish the covenant.  We do not subscribe to that view.  The effect of preventing a plaintiff permanently from enforcing a building restriction in relation to a particular building does not remove the restriction.  If for any reason, the building were to be removed, the restriction would still be in place.  We respectfully would depart from the reasoning of the Court in Felard (No 1) to that limited extent. 

81.      The same reasoning reappears in relation to the second judgment of the Court where it was considering whether it had power to award damages in view of extinguishing the restrictions.  Once again, it was said that the effect of exercising a power to award damages would be to extinguish the restriction, and once again we do not consider that necessarily to be so.  Nor do we think that the introduction of payment of a sum by way of damages would amount to the payment of consideration for extinguishing the restriction, which is implicit in the Court's reasoning - and because the Court could not compel the parties to pass a contract and cancel the servitude, the mere fact of making provision for a payment did not affect the position.  In our judgment, the award of damages would not be a payment to extinguish the restriction of servitude, but would be compensation for its breach.  The fact that the servitude or restriction continued in theory makes it plain that that is so. 

82.      In Felard (No 2) the Court then went on to consider the case of Corbin v Lee (1934) 12 C.R. 348, where the Court ordered the parties to pass a contract of rectification at the defendant's expense and ordered the defendant to pay £50 by way of compensation.  The Court noted that the contract was in fact subsequently passed in that case, but it regarded the decision of the Court as unhelpful because the Court in Corbin v Lee did not give any reasons for its decision.  There is a suggestion that perhaps the court order flowed with the consent of the parties, because the contract was subsequently passed but there does not appear to have been much evidence before the Court to that effect other than language which would be found in any contract passed namely that the parties "sont convenus".  If the parties were not "convenus", the contract would not have been passed anyway. 

83.      The Court then noted that there were two contracts where the Court had previously insisted on a breach of proprietary rights being remedied.  The examples of Gavey v Mauger (1720) reported in Le Gros at page 262 and Tostevin v Lobb (1959) 252 Ex. 127, 220.  It is not apparent that in either case there was argument as to whether any other remedy should have been applied. 

84.      It is not clear whether other cases were put before the Court on that occasion, but it seems to us that the fact that in two cases the Court did not award damages and in one case it did suggests that the remedy decided by the Court is a matter of discretion.  We are not surprised, of course, by the fact that in none of the cases does there appear to be any reasoned decision going to the jurisdiction of the Court.  Until 1950, when the English system of judgment writing was introduced, reasoned decisions were not always easily come by.  Frequently the reasons had to be discerned from a recital of the pleadings and a reference under the heading "considérant que" or "vu que" where the information provided was not always entirely complete. 

85.      We note that the Royal Court's conclusion in Felard was one at which it arrived with reluctance because indeed the Court made reference to the possibility of circumstances where strict legal enforcement of the law would create injustice. 

86.      If we were to transpose as far as one can, the discussion in Felard Investments to the present case, the argument would have to run that an award of damages would amount to the granting of an easement or servitude permitting the wall separating Treetops from Clairmont to remain notwithstanding that it crossed the boundary which had been established between the two properties.  We do not think that such a conclusion would be justified.  No servitude or easement has been created.  The wall does not appear to be in a particularly good condition, and it may not stand indefinitely.  When it falls down, there will be no right accruing to the owner of Treetops to rebuild it in the same place.  There is no right of access onto the property of Clairmont to repair it.  These considerations show that when an encroachment has been established, there is a difference between an award of damages and the creation of real property rights on the part of the encroaching owner to maintain the encroachment.  Of course the neighbouring owners may after receiving this judgment come together to agree new rights.  We very much hope that such an agreement can be reached; but that would be for the future. 

87.      For all these reasons, we find that we do have a discretion to award damages in an appropriate case for an encroachment of the kind which we have now found to have been established in the present case.  

88.      We turn next to the question as to what principles should govern the Court in its exercise of discretion as to the remedy which should be selected in such a case.  In most cases, when the Court is considering the grant of an injunction or mandatory injunction, the approach taken is that such equitable relief will only be given in cases where damages do not provide an adequate remedy.  Such an approach seems to proceed on the assumption that damages would normally be the first choice of remedy and the other equitable remedies would only be selected where injustice would otherwise be caused.  Assuming that to be so, we do not take the same view in relation to the selection of the appropriate remedy for breach of a real property right.  Clearly the Court does have to make an objective appraisal of monetary compensation in some personal injury cases where it is very difficult to measure in money terms some damage which the plaintiff has sustained - for example the loss of a thumb in an industrial accident.  Nonetheless, there have been a sufficient number of cases, whether in this jurisdiction or in England and Wales which enable some parameters to be established in relation to the quantum of damages in these cases.  In our judgment, the same is not so in relation to breach of real property rights for at least two reasons:-

(i)        These real property rights are frequently very different, and one cannot establish parameters or quantum of damage from a wide selection of previous cases; and

(ii)       Given the wide variety of circumstance in relation to the real property rights breached, it is particularly difficult to come up with a consistent formula which appropriately would compensate the land owner whose rights have been breached. 

89.      In our view therefore the starting point in relation to real property rights would be that an order which has the effect of reinstating those rights would be the appropriate choice of remedy.  This too is consistent with the fact that these real property rights are generally created to run with the land by the landowners taking the customary oath before the Court. 

90.      However, the Court will always be able to look at the situation in the round, and make its own assessment of the impact of the breach of proprietary rights in respect of which compensation would be ordered.  That impact can be considered both in terms of diminution in the value of the property in respect of which the rights have been breached as well as the personal impact of the breach of rights on the land owner in question.  Both those assessments go to the equity in selecting a remedy other than an order for the reinstatement of the properties removing the encroachment which amounts to the breach of property rights.  The Court will also have regard to how the breach came about; and whether, as was of concern in Felard (No 2), the effect of giving damages would be to ignore a real property right which had been deliberately or recklessly disregarded or to create such a right contrary to the wishes of the owner of the servient land.  

Application to this case

91.      On the plaintiff's side, we recognise that she was absolutely clear in the position she took up in relation to the passing of the boundary contract.  Undoubtedly, the plaintiff's lawyers made it perfectly plain to Mrs de Carteret's lawyers that all encroachment issues would have to be decided later.  The plaintiff had furthermore made that plain to the defendant's lawyers by the request to Advocate Dorey to give the warning to Advocate Slater that the boundaries should be carefully checked. 

92.      On the defendant's side, it seems to us that the Court can take into account these factors:-

(i)        Mrs de Carteret was very anxious to sell her property Treetops, and this was made extremely difficult by the continuation of the boundary dispute. 

(ii)       The boundary line that was eventually established did make it plain that the trees which separate Treetops and Clairmont will be firmly established on Clairmont's property.  It follows that the plaintiff will be in control of the extent to which they may be cut back (save in so far as the Statutory Nuisances (Jersey) Law 1998 has any application, but of course that application exists whichever way we decide this particular case).  

(iii)      As a consequence, some continuing impact on the light to be enjoyed in the extension to the Treetops property will be experienced by the owner of Treetops for there is no right of access on to the property Clairmont for the purposes of repair, upkeep or renewal of the dividing wall.  Accordingly, the plaintiff's enjoyment of Clairmont ought not to be severely affected by an award of damages as opposed to an order that the encroachments be removed. 

(iv)      If the boundary contract established a boundary which was more or less in the same place as under the original contracts - which we think is very unlikely - then there would have been an easy answer to the criticisms made by the successive owners of Treetops to the height of the trees.  The plaintiff's parents would simply have responded to say that the trees were well within the property of Clairmont, and they were not prepared to have them reduced in height.  Such a letter would have been supportable by the contracts.  No such letter, for understandable reasons, can be found.  Equally, had it been clear that the boundary was where it is now established by the boundary contract to be, one would have assumed that the plaintiff's parents would have objected when the development of Treetops took place under the ownership of Mr Lapidus.  For these reasons, and by reference to the aerial photographs and other evidence, we think that the encroachments which now exist were probably created by the boundary contract and probably did not exist before.  In the light of the fact that Mrs de Carteret agreed the boundary contract under pressure of having to sell her property following her divorce, there seems little equity in an order now that the advantage which the plaintiff secured by the boundary contract - which does after all protect her trees - should be enhanced by subjecting the owner of Treetops to a significant financial penalty. 

93.      Balancing the factors, we do not think this is an appropriate case in which to order a demolition of the dividing wall where it encroaches on the property of Clairmont.  In our view it would be neither fair nor proportionate to do so.  We will, if necessary, hold a further hearing in order to establish the level of damages which should be awarded, but it will be apparent that, subject to any evidence which might be produced at such a hearing, our initial views would not be that those damages are likely to be significant.  We add this comment to assist the parties in trying to reach an accommodation on the level of damages by agreement. 

94.      In so far as the windows are concerned, to the extent that these are within 2 foot 9 inches of the line established by the boundary contract, we also take the view that it would be inappropriate to order that they be blocked up.  There are numbers of cases in the past where this Court, faced with windows too close to the boundary line in this way, has ordered that frosted glass be introduced.  Of itself, this shows that there is a remedy other than the blocking in of the windows and the removal of the encroachment in that respect.  In our judgment, having regard to all the factors that we have described in relation to the boundary wall, and adding the additional consideration that the presence of the trees and the configuration of the properties is such that there is no serious overlooking of the plaintiff's property through these windows, we think that an award of damages to reflect the encroachment would be appropriate.  We take into account on the other side that an order that frosted glass be substituted and that the windows be fixed so as to be incapable of opening would seriously damage the defendant's property. 

95.      We are willing to sit to determine the quantum of damages if they cannot be agreed and in that event an application should be made for a hearing before the Bailiff as single judge in order that appropriate directions can be given for ensuring a fair disposal of the argument in relation to damages. 

Authorities

Snell v Beadle [2001] JLR 118.

Nicolle v Stark (1858) reported in Le Gros "Traité du Droit Coutumier de l'Ile de Jersey" (1943).

Felard Investments and trustees of the Church of our Lady, Queen of the Universe (No 2) [1979] JJ 19.

Kwanza Hotels Limited v Sogeo Company Limited [1981] JJ 59.

Le Feuvre v Matthew [1973] JJ 2461.

Le Feuvre v Matthew [1974] JJ 49.

Hoüard, "Dictionnaire de la Coutume de Normandie" (1870).

Flynn v Reid [2012] (1) JLR 370.

Rockhampton Apartment Limited and others v Gale and Clarke [2007] JLR 332.

Ernest Farley and Son Limited v Takilla Limited 1989/22.

Bastion Offshore Trust Co Limited v Finance and Economics Committee [1994] JLR 370.

Corbin v Lee (1934) 12 C.R. 348.

Gavey v Mauger (1720) reported in Le Gros at page 262.

Tostevin v Lobb (1959) 252 Ex. 127, 220.

Statutory Nuisances (Jersey) Law 1998.