Burns & Anor v Morton [1999] EWCA Civ 1514

EWCA-Civ
Burns & Anor v Morton
[1999] EWCA Civ 1514 · 1999-05-27
MR P KRAMER (Instructed by Messrs Richard Reed & Co., Sunderland SR1 1NB) appeared on behalf of the Appellant MR F SUCH (Instructed by Messrs Bretherton Ditchburn & Nelson, Sunderland, Tyne & Wear) appeared on behalf of the Respondents

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LORD JUSTICE SWINTON THOMAS : This is an appeal from an order of His Honour Judge Wood, given in the Sunderland County Court, on 23rd March 1998.

The dispute between the parties concerns a boundary dispute between Mr and Mrs Burns as claimants and Mr Morton as defendant. The claimants are the owners of land and a dwelling-house at 5 Orchard Gardens, Whitburn, Tyne and Wear. The defendant is the owner of the next door property, 4 Orchard Gardens. Their gardens adjoin one another and the issue that arose for the judge's decision related to the boundary, or one of the boundaries, between the two gardens. The claimants' particular complaint was that the defendant clipped and pruned a Leylandii hedge belonging to them and on their land, whereas the defendant said that he was entitled to clip the hedge because it was encroaching on to his land. That dispute, and others which arose between the parties, gave rise to the issue as to the true boundary between the two properties.In 1965 the two plots of land were in the joint ownership of Mrs Berriman. On 16th December 1965, 5 Orchard Gardens was conveyed by Mrs Berriman to a Mrs Hall. A plan was attached to the conveyance. Clause 4 of the conveyance itself, which is of considerable relevance to this dispute, is in these terms:
"It is further hereby agreed and declared that the division garden walls or fences (if any) on the North and South sides of the piece of land hereby conveyed shall be party walls or fences and maintainable accordingly and shall be erected to the approval of the Architects of the Vendor as to one-half of the thickness thereof on the property hereby conveyed and as to the other half thereof on the adjoining land now formerly of the Vendor."
In 1967 the other plot, plot 4 Orchard Gardens, was conveyed to the appellant's predecessor in title by conveyance dated 10th August 1967, and contains a similar, though not absolutely identical, provision. The provision in that conveyance reads as follows:
"the dividing garden wall or fence (if any) on the North side of the said property and the wall on the South side thereof shall be party walls or fences and maintainable accordingly and any wall or fence on the North shall be erected to the approval of the Architects of the Vendor as to the one half of the thickness thereof on the said piece of land hereby conveyed and as to the other one half thereof on the adjoining land."
It is the wall on the north side of the property which is the subject of the dispute.At some date prior to 1977 a fence was erected and it is common ground that the fence was erected along the boundary line between the two properties and became a dividing fence and a party fence.The appellant, Mr Morton, purchased 4 Orchard Gardens in 1977. In 1979 he removed the boundary fence and in its place he built a wall. At that time the adjacent property was owned by Mr and Mrs Noble. The judge found that the appellant built the wall about six or nine inches behind the line of the fence, namely six or nine inches on his side of the fence which had previously demarcated the boundary between the two properties. Mr and Mrs Noble planted the Leylandii trees close to the wall and in a position where, as the judge found, they were almost bound to grow over the wall or fence. In 1990 the respondent purchased 5 Orchard Gardens. Disputes arose in relation to trellis work and plants or hedges and the Leylandii trees on the respondents' side of the wall. In consequence these proceedings were issued.The judge came to the conclusion that the wall erected by Mr Morton in 1979 was the boundary between the two properties; in other words, that it replaced the previous boundary between the properties with the result, if the judge was right, that the respondents obtained a strip of land of some six or nine inches in width. On page 2 of the judgment, the judge said this:
"The clear intention, therefore, in my judgment, was that the party wall or fence erected between the two properties was intended to be a party wall owned by both parties. Originally, it seems there was in fact a wooden fence between the properties and there is little dispute but that that was a party fence, but that fence was eventually removed and in about 1979 the defendant erected a wall which we can now see in the various photographs and plans, about 6 or 9 inches behind the line of the fence, and he regarded that as his wall.
As far as I can tell from the evidence, the defendant did not consult with his then neighbours, Mr and Mrs Noble, about it, although he does say in his evidence at page 28 in the bundle that it was his hope or intention that they would clad the other side of the wall, particularly the concrete part which is left exposed, with some sort of stone cladding."The judge then referred to an Enforcement Notice served by the local Borough Council and the fact that Mr and Mrs Noble had planted the trees extremely close to the wall or fence.There is no dispute between the parties that the wooden fence which was in place prior to 1979 did, as the judge found, demarcate the boundary between the two properties. The judge recited the history and on page 4 of the judgment he said:
"... in order to ascertain whether the defendant has trespassed on the plaintiffs' land, or indeed pruned trees excessively, it seems to me necessary first to ascertain where the boundary between the premises is. In my judgment, the clear intention of Clause 4, and of the parties who lived on both sides up until 1979 at any rate, was that the fence was the party wall, and whilst I accept that the defendant deliberately built his wall inside the fence line, he must have been aware of the provision of Clause 4 because it appears in his own title or document of title, which is at page 71 in the bundle, and he decided to build this wall without, as I say, any consultation with his neighbours."
The judge then referred to Watson v Gray [1879] Ch. D. 192, and he continued by saying this:
"The defendant says that he pruned the trees back to where he believed the boundary was. Well, I accept that evidence. It seems to me that is correct but, unhappily for the defendant, the boundary, as I find it, is not where he thought it was. Consequently, I do find that the defendant trespassed onto the plaintiffs' property and was not entitled to use the remedy of self-help as he claimed he was doing."
Accordingly, the judge found that the boundary between the properties was in 1979 demarcated by the new wall and went on to award damages accordingly.Mr Kramer, on behalf of the appellants, submits that the judge was wrong to come to that finding. At the centre of Mr Kramer's submission is the concept that the building of a wall by Mr Morton within the confines of his own property is not capable in law of transferring to the neighbouring owner title to a strip of land between the centre of the wall and the original boundary.Mr Such, on behalf of the respondent, submits that the central issue in this case is whether the wall as erected in 1979 is, following the oral agreement, a division wall designating the boundary between the properties despite the fact that it is six or nine inches inside the boundary as it was before 1979. He submits that the Land Registry practice required the plan to set out the boundary of the property between the properties, and that the wording in the conveyance is vital to tell the world, and in particular the purchaser, where the boundary lies. In this case that can only be ascertained by reference, as Mr Such puts it, to the boundary or party wall.Mr Such submits that the two conveyances are in similar terms and both refer to divisional walls and describe those dividing walls as party walls. Accordingly, Mr Such submits, that that wall is both a divisional wall, which laid down the boundary between the two properties, and is also a party wall owned as to half each between the parties, the wall can be regarded that purpose referred to. He then submits that building a wall four or five inches back from the previous boundary is minimal and did not in essence alter the character of the previous boundary fence or wall. Then, finally, relying on the case of Neilson v Poole [1969] 20 P&CR 909, Mr Such submits that there was an implied agreement between the parties that the new wall should be both a boundary wall and a party wall. Mr Kramer responds by submitting that the dividing walls in the conveyances mean no more than a wall dividing the property from another owner and that expression does not define the boundary between the properties.In my judgment, Mr Such's submissions are well-founded. Not only do his submissions, in my view, accord with principle but also with authority and with commonsense.The facts of Neilson v Poole , as Mr Kramer rightly pointed out, are somewhat different to the facts of the instant case, but the guidance given by Megarry J, who was of course exceedingly experienced in this field of law, in that case is, in my view, of great assistance in the present case. The headnote reads as follows:
"The plaintiff and defendant were neighbouring owners of two of the three parts into which a house and grounds had been divided and a dispute arose as to the boundary line between their two gardens. The plaintiff claimed that the line ran between two points A and B, on a plan (the `purple' line) and that this would be found to be so on a true construction of the conveyance to him, supported by the respective conveyances to the predecessor of the defendant and to the owner of the third part of the house and grounds, the plaintiff contending that the conveyances were admissible evidence because of possible admissions therein against the common vendor's interests and because of the doctrine of contemporanea expositio . The plaintiff also relied on an oral agreement between himself and the personal representatives of the defendant's predecessor defining the boundary line."
The holding, insofar as it is relevant to this case, in the headnote is:
"... on the evidence, there was an agreement between the plaintiff and the defendant's predecessor which was for a boundary along the `purple' line, and since this supported the conclusion already reached on the true construction of the plaintiff's conveyance, the plaintiff would succeed on his alternative claim based on the boundary agreement."
Mr Kramer immediately distinguishes the present case from Neilson's case because he points out correctly that in Neilson's case the judge found that the purple line represented the true boundary and that the boundary agreement supported the concept that that was the boundary. In this case, of course, Mr Such's submission embodies the concept that there was in this case an agreement which to a small degree altered the boundary from where it had previously been.Megarry J, on page 912, referred to the fact that the claimant relied upon an oral boundary agreement made between himself and the representative of the public trustee. He then dealt with his finding that the true boundary between the properties was that shown by the purple line on the plans annexed to the conveyance and he continued:
"Has, then, anything happened to alter or confirm this position? I turn to the alleged boundary agreement of September 29, 1960. In brief, this arose out of the preparations for the sale of Brooklands No. 1 made by Mr Shorthouse's executor. A Mr Burn, employed by agents for the executor, came to the not surprising conclusion that some steps ought to be taken to define the boundaries of Brooklands No. 1 before putting it up to auction. He accordingly obtained instructions to visit the property and agree the boundaries on behalf of the executor; and it has not been suggested that Mr Burn lacked authority to make a boundary agreement binding on the executor. Having examined the conveyances and the other documents, he visited Brooklands with an assistant, Mr Thomas, and proceeded to stake out the boundaries.
At the end of September 1960 (I think on September 29), he returned in order to agree the boundaries with the then owner of Brooklands North, and also the plaintiff; and he proceeded to do this, orally. On the disputed boundary, the plaintiff accepted the position of Mr Burn's two pegs, one near pillar No. 4 and the other at the southern end of the 176 feet 6 inches line. The plaintiff did not, however, agree three of the pegs on the eastern boundary. Mr Burn moved these pegs to a position which the plaintiff accepted; and I need say no more about them. In my judgment, it is clear on the evidence that the alleged boundary agreement was made. True, it was put forward by the plaintiff somewhat late in the day: but on the independent evidence of Mr Burn, which I accept, I feel no doubt that the agreement was duly made. The question, then, is: Is the line of the boundary established by the agreement so far as it is relevant to the case?"Then, two lines lower down:
"... I hold that the plaintiff nevertheless succeeds on his alternative claim based on the boundary agreement."

The judge then returned again to the facts, and on page 918 he said:

"Now a boundary agreement may constitute a contract to convey land. The parties may agree that in return for a concession by A in one place, straightening the line of division, B will make a concession in another place; and the agreement may thus be one for the conveyance of land."
Then, on page 919,

the judge said:

"In this case, the boundary on the conveyance, as I have construed it, coincides with the boundary on the agreement, and so the agreement is not registerable. If the two boundaries had not coincided, because, for example, the true construction of the conveyance yields a different boundary, then the agreement would have been an agreement whereby in fact it was agreed that land belonging to one should thenceforward belong to the other."
Those passages in the judgment are, in my view, apt to the present case. True it is, as the judge pointed out, that there was no direct evidence from Mr and Mrs Noble. Accordingly, the judge had to draw inferences from the facts that he had. He had to consider whether he had evidence from which he could properly imply an agreement between the parties to the effect that the boundary between the two properties should be in the position when the wall was built in 1979. The wall, by the time the judge gave his judgment in this case, had been there for some 20 years. It had, clearly, by that time been accepted by the owner of the adjoining property as being the true boundary to the property. The judge found, and in my judgment rightly found, that when the wall was built by Mr Morton it was indeed intended to demarcate the boundary between the two properties, and was accepted by both owners as the boundary from then onwards.As I indicated earlier, the conveyance in respect of each property refers to the wall between the properties as being a division or dividing wall. That phrase clearly, to my mind, indicates an intention that the wall should demarcate the boundaries between the properties and were it not so, as Mr Such rightly submitted, nobody, in particular a purchaser, would be in a position to know where the true boundary between these two properties lay. The plans are not sufficiently detailed to demarcate the boundaries with any exactitude, with the result that the position of the wall, situated very close to the old fence, was the only way in which a purchaser could know what he was buying.Accordingly, although not for exactly the same reasons as the judge, I am of the view that the judge came to the right conclusion. In my judgment, in 1979 the two adjoining owners came to an implied agreement that the boundary between the two properties should be where the new dividing wall had been built by the Appellant and accordingly, as a result of that agreement allied to the wording of the two conveyances, the small additional strip of land operated to convey that strip from no. 4 Orchard Gardens to no. 5 Orchard Gardens. It follows also from what I have said, that the wall built in 1979 became a dividing wall and a party wall.For those reasons I would dismiss this appeal.

LORD JUSTICE TUCKEY : I agree. The new wall became a division wall which the two conveyances declared to be a party wall and the adjoining owners involved impliedly agreed that this was the case.

ORDER

Appeal dismissed with costs. Leave to appeal to the House of Lords refused.

(Order not part of approved judgment)

Cited in 1 later judgment