Steward v Gallop & Anor [2010] EWCA Civ 823

Case No B2 2009/1629[2010] EWCA Civ 823
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NEWPORT (IOW) COUNTY COURT
RECORDER CLAIRE MISKIN
7N100310
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27 July 2010
Before
LORD JUSTICE LLOYDLORD JUSTICE JACKSONLOR D JUSTICE PATTEN
Between
WILLIAM EDWARD STEWARDAppellant(1) HAROLD JAMES GALLOPRespondent(2) VICTORIA KATHRYN GALLOPRespondentWILLIAM EDWARD STEWARD Claimant Respondent- and -(1) HAROLD JAMES GALLOP (2) VICTORIA KATHRYN GALLOP Defendants Appellants
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Timothy Morshead (instructed by Parker & Gurney-Champion) for AppellantsTom Weekes (instructed by Roach Pittis) for RespondentHearing Hearing date: 10 June 2010
Judgment

Introduction

[1]This appeal is brought against an order made on 11 August 2009, following a judgment handed down in March 2009 after a seven day trial of a boundary dispute. The case had been estimated to require two days for the hearing in the county court, and accordingly two days were made available, on 11 and 12 September 2008. As often happens, this estimate proved woefully inadequate, and other days had to be found as and when available: three in late November and two in December. Miss Claire Miskin, who heard the claim sitting as a recorder in the Newport (Isle of Wight) County Court, found in favour of the Claimant, Mr Steward, and refused permission to appeal. Permission was granted by Rimer LJ.[2]The case has features in common with many disputes between neighbours about boundaries, above all that the parties have incurred amounts of legal costs in the conduct and pursuit of the proceedings which are even more disproportionate to any objective assessment of the value of the land at stake than is, unfortunately, commonly the case in litigation. In response to an enquiry by Jackson LJ shortly before the hearing of the appeal, on behalf of Mr Steward the value of the land was put at nil, while his costs were said to be £76,000 at first instance and £33,500 on appeal. The response on behalf of Mr and Mrs Gallop, the appellants, was that the land was “of very little commercial value” and that their costs would have been similar to those of Mr Steward below, and significantly more on appeal.[3]According to Mr Steward’s evidence in this case, he and Mr Gallop had a conversation in June 2006 in the course of which the latter said that the dispute (which had already arisen) was going to cost both of them a lot of money. That was a correct prediction, but I wonder whether either of them could have imagined at that time that the costs incurred would be on anything like the scale of what we were told have by now been spent. The conclusion to which I have come is that the appeal must be allowed and the case remitted for a new trial, so that, unfortunately, yet more costs will be incurred. That prospect must be unwelcome from every point of view, but careful consideration of the issues argued on the appeal has convinced me that there is no alternative as regards the disposition of the appeal.[4]We were much assisted by the submissions of Counsel, Mr Morshead for Mr and Mrs Gallop and Mr Weekes for Mr Steward, neither of whom had appeared at the trial. Some aspects of the grounds of appeal involve challenges to the recorder’s findings of fact. It was therefore surprising that the appeal bundle did not include any transcript of any part of the evidence. However, Mr Morshead adroitly limited this aspect of his challenge to certain points on which, he argued, the evidence from the witness statements (all of which were in the appeal bundle) was clear. On the view I have come to on the principal issues raised on the appeal, it is not necessary to deal with all of the points taken, and only a few of the factual points require discussion.

The adjoining parcels of land

[5]I will first describe the relevant land and the nature of the dispute in outline, before coming to the details of the case and of the appeal.[6]Much attention was given during the trial and on the appeal to a plan on a Deed of Partition made on 14 April 1915 which related to land all of which is now owned by Mr and Mrs Gallop. I will describe the significance of the Deed more fully later. The plan indicates with reasonable clarity much of the land with which the case is concerned.[7]The land which it depicts lies just to the west of the village of Apse Heath, not far from Sandown in the Isle of Wight, and to the south of the road from Sandown to Newport, now the A3056, then called High Road and now Newport Road. It is roughly triangular in shape, with an apex in an acute angle at the western end. The northern boundary of the land shown runs along the southern edge of the road. To the west is shown the start of a track or drive which leads southwards into what is now Mr Steward’s property. Beyond that the plan shows that there is property belonging to a Mrs Peach. The land shown to the south is identified by the word Langtreys. That now belongs to Mr Steward. The boundary in dispute is part of the boundary with that land. The land to the east of that which is the subject of the deed is identified as “Apse Heath Brickfield”.[8]What used to be called Langtreys is now called Galley Horne. It belongs to Mr Steward, as part of a holding said to be of some 18 acres, some of which at least (including the relevant part) has been in his family since 1922. Ignoring the westernmost part of the boundary, which runs along or close to the track leading southwards into Galley Horne, the part of Mr Steward’s land which abuts that of Mr and Mrs Gallop is now an open field, having once been an orchard. Mr Steward constructed a concrete road near the boundary fairly recently.[9]Mr and Mrs Gallop bought their property in 2005. It had been neglected for some considerable time, and the garden was very overgrown. They cleared a lot of the garden. In so doing they also cleared a significant length of what Mr Steward says was a hedge belonging to him which formed the boundary feature between the two properties. They put up a new fence, and they laid concrete bases on which they placed three constructions, an aviary and two sheds, which he says encroached partly on his land. By these proceedings he sought an injunction preventing them from trespassing on his land, and damages.[10]I will refer later, as necessary, to the details of the way in which the dispute arose, and to the course of the proceedings, in which the parties’ contentions developed and changed on each side.[11]So far as any evidence shows, the two parcels of land either side of the disputed boundary have never been in common ownership. Certainly they appear to have been in separate ownership at least since 1864. There is no trace of a conveyance which created the boundary. Accordingly it is necessary to say something about the history of the title to the land on each side. The history of Mr and Mrs Gallop’s title is more complex than that of Mr Steward. I will start with his title.

The title to the respondent’s land

[12]The land immediately to the south of Mr and Mrs Gallop’s land is numbered 1427 on the 1975 edition of the Ordnance Survey. Mrs Amy Beatrice Fleming sold this, with other land, to Frederick James Norris in May 1917. He sold to Robert Edwin Steward (no relation to the respondent) in 1920, and the respondent’s grandfather, William Henry Steward, bought it from him in 1922. It has remained in the family since then. The respondent himself acquired this land by a conveyance by way of gift from his mother in 1991.[13]Title deeds disclosed at a late stage by Mr Steward also included older deeds, among them a mortgage in 1910 and a conveyance in 1914, the plans on which are in the bundle, and show the same land as being comprised in these dealings as was later acquired by the respondent’s grandfather in 1922.[14]By the 1991 conveyance from his mother, Mr Steward also acquired some land to the east of that which Mr and Mrs Gallop own, formerly part of the Brickworks. None of Mr Steward’s land is registered.

The title to the appellants’ land

[15]So far as the land belonging to Mr and Mrs Gallop is concerned, I will start with the land to which the 1915 deed related. An abstract of title gives details of earlier deeds, the earliest from 1899.[16]By this deed dated 18 September 1899 between Eliza Barnes (1), Harry Barnes (2) and Harry Barnes and George Barnes (3) a parcel of land was conveyed to Harry Barnes and George Barnes to be held as tenants in common in equal shares. The land was described as: “All that freehold cottage or tenement with the shed buildings land and premises belonging thereto situate adjoining to Apse Heath in the Parish of Newchurch in the Isle of Wight and then in the occupation of Thomas Creasy as tenant which said hereditaments formerly comprised two cottages or tenements and with the garden and orchard thereunto belonging were formerly in the respective occupations of Joseph Barnes (since deceased) his son the said William Barnes deceased and John Jeffrey”.[17]Eliza Barnes was the widow of William Barnes, and Harry Barnes his eldest son and heir-at-law. The conveyance was made in order to give effect to the known desire and intention of William Barnes that the land should pass to the two brothers, not just to the heir. Accordingly, no monetary consideration passed. By then, it seems, the land was shown as enclosure 402 on the 1898 Ordnance Survey (second edition), but it is not referred to as such in the 1899 deed.[18]In 1911 Harry Barnes sold his undivided half share to Frederick Jesse Mackett and his wife Maude. Then in 1915 George Barnes, on the one hand, and Mr and Mrs Mackett on the other divided the land between them by the Deed of Partition already mentioned. Mr and Mrs Mackett took the western half, coloured pink, and George Barnes the eastern half coloured blue.[19]The Deed of Partition, dated 14 April 1915 and made between George Barnes (1) and Frederick Jesse Mackett and Maude Mackett (2), recited the history of the title from 1899 and the agreement to partition the land. By its operative part George Barnes conveyed his undivided share in the pink land to Mr and Mrs Mackett, and they in return conveyed their undivided share in the blue land to Mr Barnes. The description of the pink land is as follows:
“All that piece of freehold land with the cottage and other buildings erected thereon or on some part thereof known as Sunnybank situate near Apse Heath in the Parish of Newchurch in the Isle of Wight and which said piece of land comprises part of a field or close of land numbered 402 on the Ordnance Survey map of 1898 (second edition) of the said parish and with the abuttals boundaries and dimensions thereof is more particularly delineated in the plan drawn hereon and is thereon coloured pink.”
[20]The conveyance of the blue land is in corresponding terms.[21]The plan has three dimensions marked on it. The blue land and the pink land are divided by a straight line boundary drawn at right angles to the main road. The length of that boundary is shown as 125 feet. The frontage of the pink land to the road, to the west, is given as 222 feet, and that of the blue land to the east as 159 feet. Within the pink area a building is shown, presumably the cottage Sunnybank, which was later demolished. Two trees are shown on the pink side of the internal boundary, and one on the blue side, close to the southern end of the internal boundary. The plan identifies the adjoining lands as I have mentioned. The entrance to the track leading into Langtreys is shown between the western end of the pink land and that of Mrs Peach. Along each of the external boundaries of the pink and blue land there is marking on the plan which could be taken to show a hedge or similar feature, on the inside of the boundary. This is continuous along all four boundaries except for a short stretch on the north side at the western end. There are similar markings along other boundaries shown on the plan, including that across the road, of Bigbury Farm, as well as on those parts that are shown of the roadside boundary of the brickfields and Mrs Peach’s land, and two boundaries going south, one between Mrs Peach’s land and the track leading into Langtreys and another going south from the south-eastern corner of the blue land.[22]The earliest document of title referred to in the Schedule to the Deed of Partition is dated 12 February 1864. It is reasonable to assume, from the known documents of title as regards the appellants’ land, that what was partitioned in 1915 was already a distinct parcel of land in separate ownership from any other land in 1864.[23]George Barnes sold the blue land to Mrs Miriam Smith in 1922. In August 1937 she bought a piece of land to the east of the blue land, to which I will refer later. In or about 1937 or 1938, she had Thornbury built on the blue land, at the western end of it, nearest to the boundary with the pink land. Mrs Smith died in September 1938.[24]I diverge from the history of the title to mention that there are two septic tanks which serve Thornbury. Mr Steward contended that a later purchaser, Mr Steer, had put one of them in in 1983 but the recorder accepted Mr Steer’s evidence that both had already been there when he bought the property, and said that it was likely that they were put in when the house was first built.[25]There is also a ditch to the north of part of the hedge on the southern edge of Thornbury, running eastwards and either continuing for a long way eastwards or at least connecting with another ditch which runs eastwards. The history of this ditch came to be a major issue in the trial, with disputes as to when it was created, and whether at any time it extended farther westwards than it now does. It does serve to carry away the outflow from the septic tanks of Thornbury, and also a drain carrying rainwater from the roof of Thornbury, which seems to indicate that it has existed at any rate since 1938 when the septic tanks were put in and the house was first built. The ditch to the east, according to the evidence, continues well beyond Mr and Mrs Gallop’s land, along the boundary between Mr Steward’s family’s original land and the former brickworks. It is said to end up in a garden well to the south-east, in Ventnor Road.[26]In 1940 the blue land, with the extra piece of land to the east, was conveyed to Mrs Miriam Smith’s son and daughter-in-law, Mr Joe and Mrs Florence Smith. In 1944 they bought both the pink land, from Mr and Mrs Mackett, and another small parcel of land to the east, from the Island Brick Co Ltd.[27]Mr Joe Smith died in 1957. His widow and their son Mr Aubrey Smith lived in Thornbury at the time, but each of them seems to have moved out in the early 1960’s. According to Mr Steward, Mr Aubrey Smith worked the land until about 1960, but after that it became neglected, and all the more so after they had both moved out of the house. Mrs Smith sold the pink land and the westernmost part of the blue land, on which Thornbury stood, in 1975. The then purchaser sold to another in 1978, he to others in 1980, and they in turn to Mr and Mrs Steer on 29 March 1983. Mr Steer gave evidence at the trial. They retained the property until 27 June 1988, when it was sold to Mrs King and Mrs Phillips (Mrs King’s mother). During Mr and Mrs Steer’s period of ownership the property which they owned was first registered, on 27 March 1987.[28]Mr and Mrs Gallop bought that land from Mrs King’s executors on 12 August 2005. Meanwhile, the rest of the blue land and the additional land to the east passed to Mr Aubrey Smith on his mother’s death and remained in his ownership until he died in May 2006. On 13 June 2007 his executors sold it to Mr and Mrs Gallop.

Other old plans

[29]It is convenient at this point to mention some other plans which we were shown. A number of other plans emerged after disclosure by Mr Steward of his documents of title. The plan on the 1910 mortgage already mentioned shows the boundary between the land then held by Mr George Barnes and his brother Mr Harry Barnes in undivided shares on the one hand, and Langtreys on the other. Along that boundary, and all along as far as the Ventnor Road, the boundary is shown with a marking within it which could be read as showing a hedge. On other boundaries, by contrast, the markings are different, a number being shown with trees, with or without a hedge as well. The plan on the conveyance in 1914 of the same land, which I have also mentioned, is on a smaller scale; it shows marking along the same boundary which might well be taken to indicate a hedge, within the boundary. In turn, a plan to a 1917 conveyance of the same land, reproduced in an abstract prepared in 1958 of the title of the personal representatives of William Henry Steward, grandfather of the respondent, has a similar marking all along the same boundary, though not on every boundary of the property.[30]Other plans included some taken from deeds relating to land to the east of Thornbury. These are of more peripheral relevance. One is from a lease made in 1921 and another is from a surrender, probably of part of the land held under that lease. Each shows an area of land immediately to the east of Sunnybank (as it was then called) and roughly the lower half of the land, farther from the road and adjoining Langtreys to the south. What is said to be interesting on these plans, which are on a larger scale than the others I have mentioned, is that they show specifically a ditch and a line marked “centre of hedge”. In each case the land shown on the plan with colouring or coloured edging does not include the ditch, and therefore also not the hedge which is on the far side of the ditch. The same marking in this respect appears both on the Langtreys boundary and on the western boundary with Sunnybank. Consistently with that, as regards the Sunnybank boundary, there are plans from two conveyances of land immediately to the east of Sunnybank/Thornbury. One was in 1937 by which Mrs Miriam Smith acquired a parcel of land to the east, nearer to the road. The plan to this shows a ditch on the boundary of the parcel sold, as well as wire fences on, or just within, the western boundary of the land conveyed and on the southern boundary. The second conveyance dates from 1944, when Mr Joe Smith and his wife acquired from Island Bricks Ltd the corresponding parcel to the south. The plan for this shows a ditch on the west, on the (by then) Thornbury side of the boundary and, to the south, a hedge and ditch on the Langtreys side of the boundary.

The start of the dispute

[31]According to Mr and Mrs Gallop, when they bought the property in 2005, the land around Thornbury was completely overgrown, including the land to the east, then owned by Mr Aubrey Smith. They cleared the land, including land going beyond their eastern boundary. On the south, they said that when they cleared the overgrown garden they found the remains of a very old post and chicken wire fence which had fallen into decay, with the wire mainly lying on the ground tangled up. They assumed that this old fence marked the correct boundary between their property and that of Mr Steward, so they erected a new fence either in the same position as, or to the north of, the old fence.[32]Mr Steward’s case was that the hedge along the boundary belonged to him. In his Particulars of Claim he asserted that the hedge was the boundary. In his first witness statement he described the boundary as consisting, first (from the west at Newport Road) as mostly thorn (up to 15 or 20 feet high), then a row of elms and brambles, the elms having died of Dutch elm disease in 2005 after Mr and Mrs Gallop moved to Thornbury, then a thick bramble hedge (including the westernmost part of the disputed area), then (starting at the same point as a bank) a mixture of brambles, oak trees and various bushes, with a few damson trees as well, whose fruit Mr Steward’s father used to pick. He said that the hedge (on its south side and the top) had been maintained by himself and previously his father and grandfather.[33]According to Mr Steward, Mr and Mrs Gallop cut down some 60 feet of the boundary hedge at the end of 2005, and put up a rough and crooked fence, with wire netting. He had no problem with much of the line of this fence, but he said that it extended southwards into his own land for part of its length. He told Mr Gallop that the line of the fence was not correct, but he did not accept that. Early in February 2006, according to Mr Steward, Mr Gallop levelled part of the bank to which I have referred on which the hedge had grown. Soon after that he laid concrete on part of the area where the bank had been levelled. Mr Steward said that the two men had met and discussed the boundary, and that Mr Gallop agreed to move everything back by about 3 feet, but that the fence had been moved back some 18 inches and the rest was not moved at all. Mr and Mrs Gallop put an aviary on the concrete base. Between then and April 2006, so Mr Steward said, he observed a number of changes on or near the boundary, including further extensions of the line of the fence to the south. On 27 April 2006 he had a series of 12 white marker posts put in along the line of what he contended was the boundary, and photographs were taken of these to record their position. Not long after this, some of the marker posts were taken up by Mr and Mrs Gallop and removed. According to Mr Steward, later in 2006 Mr and Mrs Gallop encroached still farther by putting up a new fence.[34]Mr and Mrs Gallop’s version of the facts even at this early stage is, not surprisingly, different. They maintained that they had not put up a fence that went any further south than the line of the old post and wire fence, the remains of which they had found in the overgrown hedge. They put up new fencing in order to keep their ducks, chickens, and dogs, and their children and grandchildren, in, and to keep foxes and other predators out, but it was on or north of the line of the old fence. They put up two sheds and an aviary on concrete bases to the north of the line of their new fence, and later a larger shed. They said that initially their relations with Mr Steward were friendly, that he saw their sheds and aviary and their new fence and that he did not complain about any of these until the last stages of putting the aviary up in December 2005, when he started to say that the base for these buildings was on his land, and that part of the fence was as well. Their version of the conversation about moving the boundary is quite different. They said that they agreed to move the fence back to the line of the concrete base, but no further, and would not agree to move the concrete base, but that afterwards it seemed that Mr Steward had had second thoughts about this agreement.[35]An incidental feature of no direct relevance to the dispute is that Mr and Mrs Gallop undoubtedly did clear overgrown areas to the east of what they had bought. They said that their children had seen a snake there, and that they wanted to clear the land both in case it provided a habitat for snakes and because they wanted to acquire it if they could, but they could not at first identify the owner. As a result of what they did, they did make contact with Mr Aubrey Smith. He would not sell the land to them but did allow them to clear it, though not to cut down any fruit trees. As already mentioned, it was not until 2007, after his death and after the current proceedings had been commenced, that they were able to acquire from his executors the rest of the blue land, and the extra land to the east which he also owned.

The proceedings

[36]Mr Steward commenced the proceedings in March 2007, alleging trespass and seeking a declaration as to the line of the boundary, damages and an injunction. According to the markings on the plan annexed to the Particulars of Claim, he complained about only part of the fence put up by Mr and Mrs Gallop, and about part of three buildings put up by them. One is a small shed; the others are marked as a dog kennel on the plan but they consist in fact of two adjacent structures, an aviary and another shed. Mr Steward contends that part of each of these is over his side of the boundary. He does not complain about a larger shed to the east.[37]Mr and Mrs Gallop did not at first put forward any contention of their own as to the correct position of the boundary. They merely denied that they had trespassed on Mr Steward’s land; they did not counterclaim. That is a legitimate stance to take on the part of the defendant to an action for trespass, leaving it to the claimant to prove that he had been in possession of it first, or that he has a better title to the land in dispute. Under pressure from a District Judge, however, Mr and Mrs Gallop later amended their defence to assert a boundary line, based on advice from their expert, a line which ran further south than that proposed by Mr Steward. Mr and Mrs Gallop’s line was rejected by the recorder, and was probably an unfortunate distraction from the real issue, namely whether Mr Steward had proved a trespass by showing that Mr and Mrs Gallop had entered without consent on land of which he was in possession, or to which he had a good title. If a defendant to a trespass claim wishes to advance his own case as to the boundary, he can do so, and it may in some cases be sensible, but it is not essential and it seems to me that Mr and Mrs Gallop ought not to have been made to do so in this case.

The issues in the case

[38]In the brief Particulars of Claim, served in March 2007, Mr Steward alleged that Mr and Mrs Gallop had entered his land, “and removed part of the Claimant’s hedge marking the boundary” between the parties’ land “and replacing the same with a fence that encroaches onto the Claimant’s land”. The extent of the encroachment was shown on a plan annexed, to which I have referred already. Thus, his case was that the hedge marked the boundary.[39]In the Defence, as originally served in May 2007, Mr and Mrs Gallop’s contention was that the fence which they had put up was entirely on their land. They relied in support of this on several points. One was the old post and wire fence “on the south side of the new fence”, to which I have referred. Next they said there were some conifer trees on land which Mr Steward claimed to own but which were planted by their predecessors in title, not by him or his (and therefore, by implication, on their land, not his). They referred to a measurement on the plan on the 1915 Deed of Partition, and to the delineation on that plan of the southern boundary of the land partitioned. They also referred to the hedge and ditch presumption, by implication relying on a ditch to the south of the hedge. In the alternative they asserted the benefit of a Limitation Act title based on adverse possession by them and their predecessors in title for over 12 years. They did not specify to what land this related, but as a defence it must have related to the land over which they were alleged to have trespassed. They asserted that the hedge which they were said to have cut down consisted only of brambles and nettles, and was on their own land.[40]In February 2008, following the order to which I have referred made by a District Judge, Mr and Mrs Gallop amended their defence. They introduced a proprietary estoppel defence, and referred to the agreement said to have been reached in February 2006, and that Mr Steward changed his mind after they had complied with it. As regards the true boundary, they put forward the case that it lay immediately to the north-east of the concrete road on Mr Steward’s land.[41]In May 2008 for the first time Mr Steward served a Reply. In that, he put forward the following points. The old post and wire fence did not mark the boundary, but had been put up by the respondent on his own land in the early 1990’s to prevent ducks coming over from Thornbury. The conifers were planted by Mr and Mrs Steer with his permission in order to replace a big oak tree that had blown down in the storm in October 1987. He took issue with the inferences sought to be drawn from the plan on the 1915 Deed, and said that it was inconsistent for Mr and Mrs Gallop to rely on that plan and yet to put forward a boundary line of their own which was in a different position and of a different shape from that shown on the Deed plan. It was also denied that the hedge marked on the Deed plan was shown as entirely within the partitioned land, and it was said that it was at least as likely, if not more so, that the plan showed only half of a hedge, so that the boundary would have lain along the middle of the hedge. It was further not admitted that the hedge as it then stood (or had stood before Mr and Mrs Gallop had removed part of it) was in the same position as the hedge marked on the 1915 plan.[42]In addition, Mr Steward put forward his own alternative case based on adverse possession, in paragraph 3.5.2. This was expressed to be an alternative to his primary case, as to a documentary title to the land up to the boundary line marked on the Particulars of Claim plan. The adverse possession title was said to extend to either the whole of the hedge, as it was or had been before Mr and Mrs Gallop’s acts, or at any rate up to the middle of the hedge. The acts of possession that he relied on in support of this were said to be:
“Having a sufficient degree of physical custody and control to amount to factual possession in maintaining, cutting and clearing the land through trimming the hedge and clearing the ditch when no one else did so, or sought to do so or was able to do so.”
[43]That was his first reference in his pleadings to a ditch. There had been mention of the ditch, and to “the hedge/ditch rule”, in his solicitors’ first letter to Mr and Mrs Gallop in February 2006. That makes it the more noteworthy that when Mr Steward’s case was first formulated by way of a pleading, it was limited to the hedge, with no reference to a ditch or to the hedge and ditch presumption. The plan annexed to the Particulars of Claim did show a ditch marked, but not within the area affected by what was said to be Mr and Mrs Gallop’s trespass, and hardly any of it was adjacent to the land of which Mr and Mrs Gallop were then the registered proprietors.[44]Mr and Mrs Gallop’s implicit reference to a ditch in their Defence at paragraph 5(e) was unclear and confusing, the latter because there was in fact no ditch to the south of the hedge, and the idea that there had been was based on a misunderstanding. Mr Steward’s incidental reference to a ditch was also confusing, since it was inconsistent with the position asserted in the Particulars of Claim, that the hedge marked the boundary, and it is not easy to see how it was relevant to the expressed alternative contention that the Limitation Act title extended either to the whole hedge or up to the middle of the hedge. Neither of these asserted any claim to anything north of the hedge, so that the ditch must have been logically irrelevant to this assertion.[45]The Reply also denied Mr and Mrs Gallop’s claim to a limitation title of their own, dealt with the proprietary estoppel defence, put forward a different version of the agreement said to have been reached in February 2006, and joined issue on the new boundary asserted by Mr and Mrs Gallop, including denying that there was any ditch to the south of the hedge.[46]Thus the issues stood as follows on the pleadings: i) Mr Steward asserted a boundary marked by the hedge either as a matter of his documentary title or by way of adverse possession, and put forward a line for the correct boundary which, so far as land then owned by Mr and Mrs Gallop was concerned, seems to have asserted only a modest encroachment, in the area where they had put up two sheds and the aviary, but it did run on the north side of the drainage ditch in the eastern part of the area in question. ii) Mr and Mrs Gallop denied trespass, asserting that they had not gone further south than the line of the old post and wire fence which they said marked the boundary. Alternatively they asserted an adverse possession title, implicitly as far as the line of that fence. As a further alternative they put forward a different boundary line, farther south. They also relied on proprietary estoppel. iii) In reply, Mr Steward asserted the limitation title already mentioned, extending to all, or to half of, the hedge, in case his contention as to the true boundary line were not accepted, and mentioned the ditch in passing, expressly (though, to me, confusingly) in support of that case.

The factual evidence

[47]Normal case management directions were given, including for exchange of witness statements and permitting expert reports to be relied on which had already been disclosed. Quite a lot of witness statements were served, not all of them in accordance with the directions, and some during the trial itself. The principal witness statements were from Mr Steward on his side (he made three) and from Mrs Gallop on that of the appellants (she made four). Others in support of Mr Steward’s case were made by his sister, Mrs Gillian Jacobs, and his son. On Mr and Mrs Gallop’s side the most significant other factual witness (for present purposes) was Mr Steer, whom Mr and Mrs Gallop had not been able to trace until a late stage. He made a witness statement between the first days of the trial on 11 and 12 September and the adjourned hearing on 20, 21 and 24 November. By then Mr Steward had given his oral evidence. He made a further witness statement to comment on that of Mr Steer and, we were told, he was recalled in November, no doubt to deal with points on which their evidence was not in agreement. The trial was completed with submissions made on 15 and 22 December.[48]I do not need to refer to more than a few points arising from the witness statements, as being relevant to the issues argued on the appeal.[49]Mr Steward’s first witness statement described the history of Thornbury. He referred to Mr and Mrs Steer’s period of ownership. He said that they improved Thornbury and put in a new septic tank, and that the contractor put the outflow from the new septic tank “directly into my ditch”, and that he had not noticed it at first because the hedge was then so thick. He also said that a big oak tree, forming part of the boundary, blew down in the gales of October 1987, falling into the garden of Thornbury. He said that he cut it up and removed it. This created a gap in the hedge. He said that later Mrs Steer asked him whether he intended to do anything about the gap and, when he said he had not thought about it, she asked if she could plant something there, to which he agreed. Then he said that Mr and Mrs Steer sold in or about 1988, and that later, in about 1991, the property was bought by Mrs King, who kept a lot of ducks which used to fly onto his land.[50]He described the composition of the hedge along the boundary. He said that, from his earliest recollection until the 1970’s his grandfather, his father and he himself in turn had maintained “this boundary fence”. The reference to a fence is curious, but he went on to say this about the work that was done:
“We maintained our side of the hedge and the top of the hedge and the work was done with hand tools, staff hooks, bill hooks and rip hooks and the ditch was cleaned out with a four-grained fork. From the early 1970’s I arranged to have the work done by a contractor using a machine. The ditch and the hedge on the far side of the ditch continues to be maintained by hand.”
The first reference to the ditch there is puzzling in itself, in the context of a case based on the hedge; the second – “on the far side of the ditch” - is all the more puzzling as it implies that the ditch is on the south side of the hedge.[51]He made a second witness statement in a most confusing and unsatisfactory manner. It repeats exactly the content of the first witness statement, but adds other material, some of which is inconsistent with the first, but he verified the truth of the whole of its contents. Thus it repeats exactly the passage that I have quoted at paragraph [50] above, but goes on to say this in addition:
“The ditch has always been present for as long as I can remember. The ditch initially started halfway along the position of where the shed is [on an exhibited plan] and extends 450 or 500 yards in an easterly direction and comes to an end at a garden in Ventnor Road. … My grandfather, my father and myself have always treated this ditch as our own. I have carried out the annual maintenance to the ditch and if anything needed doing to the ditch I always did it. Nobody else carried out any work to the ditch. I have always treated the hedge, bank and ditch as my own. I have always looked after it for myself and for my family … This land has always been in my family … I have never thought of this land as anything other than my own.”
[52]Mrs Gallop had stated that when they were clearing the overgrown state of the property after their arrival in 2005, they came upon a “very old post and chicken wire fence” along the boundary which they assumed marked the boundary. They needed fencing to keep children and birds in, and for protection against foxes and other predators. They therefore put up a wire fence on the southern boundary, which she said was on the same line as, or on their side of, the remains of the old post and wire fence. In response to this Mr Steward said that the old post and wire fence was “in the area behind their shed and was almost certainly a bit of fencing that I put in that area on my side of the hedge to prevent the then owner of the land’s ducks coming onto my land.”[53]Mrs Gallop had also said that Mr Aubrey Smith came to see them at Thornbury and that, on that occasion, he told them that he and his father had dug the drainage ditch on their own land, when his father owned the whole of the pink and blue land. He said that the whole hedge belonged to Thornbury, not to Mr Steward.[54]In a later witness statement she said that they had recently discovered that there was a drainage pipe which took water from the roof of Thornbury to the drainage ditch, with a separate outflow near the outflow pipe for the septic tank.[55]She also said that there was a second ditch, south of the hedge. This turned out to be a misunderstanding. Mr Steward said more about the drainage ditch in response to this suggestion, which he denied. He went on:
“There was only one ditch existed when Mr and Mrs Gallop purchased Thornbury and that is my boundary ditch which up until the end of the 1970’s started at a point near to the eastern end of Mr and Mrs Gallop’s aviary/shed. It slowly then got filled in by construction of a new tank at the end of the 1970’s or possibly 1980’s and it now starts at the out flow of Thornbury’s tank (the new one) and carries on right through to the rear of properties in Ventnor Road. I would also add that in winter it is also a drainage ditch and also branches off for Princelett about half way. There is a ditch on the north side of the hedge that is my boundary ditch.”
[56]Later he said that until the late 1970’s or 1980 the boundary ditch had carried on westward for a distance of about 75 feet “from where the ditch now starts at the outfall of the sewer pipe”, that successive owners of Thornbury had filled in the ditch and that about 15 feet of it were filled in when Mr and Mrs Steer had work done to the septic tanks in about 1980 or possibly before. At paragraph 18 he said that when he saw that Mr Steer had used the ditch for the outflow from his new septic tank he thought it “a bit of a cheek”. About the report that Mr Aubrey Smith had said that he and his father dug the drainage ditch, he said “The Aubrey Smith story is hard to believe unless they assisted in cleaning it one year.” He did recall a conversation about the kind of hedge to be planted on the remains of the bank. He said that Mr Gallop proposed a kind of hedge, the name of which he could not remember, but that he replied that he would plant a thorn hedge in keeping with the countryside, but he did not remember using the word “townie”.[57]Mrs Jacobs’ witness statement described her recollection of the boundary, as comprising a bank and a hedgerow, consisting of elm trees, oak trees and brambles, and other plants and shrubs. She spoke of the maintenance of the hedgerow by her grandfather, her father and her brother, and of having observed it done while she was a child. She produced a photograph (illegible in the appeal bundle) of a painting which she said she had made in 1993 showing the family property as she remembered it as having been in 1949. She described it as showing a drainage ditch that used to go across the big orchard (the former condition of the now open field to the south of the relevant boundary) “to join with a boundary ditch that was next to Thornbury”.[58]In his witness statement, made late in the process, as I have mentioned, Mr Steer described having visited Thornbury at the end of September 2008 at the request of Mr and Mrs Gallop. He said, in paragraph 6, that he had not put in a new septic tank, and the tank outlet and ditch leading from it were the same as when he and his wife bought the property in 1983. “The ditch ended at the outlet and did not continue any further in a north westerly direction.” In paragraph 7 he said:
“I do not think that during our ownership we had any dealings with the adjoining farmer, whether about the boundary or trees or anything else. No point about the boundary ever arose and we had no occasion to consider the matter.”
[59]He said he had no recollection of an oak tree having fallen into the garden while they owned Thornbury, or of Mr Steward cutting it up and removing it, or of new trees having been planted in its place. He did not believe this happened while he was there. He also produced three photographs, of which two showed the same scene in summer and in winter. The latter shows a post and wire fence (or at least the posts), which he said was there when they bought the land in 1983.[60]Mr Steward commented on this in his third witness statement, made on 20 November. He said that he accepted that the septic tank was not new, and said that he had corrected this before the court hearing on 11 September. As to Mr Steer’s paragraphs 6 and 7, he merely said “Agreed”. He did, however, hold to his previous evidence about the oak tree falling, and its replacement by Mr and Mrs Steer, having asked him if they could do so, with conifers, though he said he would have preferred something more indigenous to the area. As regards the photographs, he said that he thought the winter one was taken in 1983 because of the look of the weather, there having been a month of freezing weather in January 1983 “when the ground looked much as it did in this photograph. I know from time to time this bramble hedge has been cut down and allowed to re-grow and I can only assume that that was done in 1982 by ourselves. I have only done this possibly two or three times in my life.”[61]The main factual witnesses were cross-examined, but as I have already said we do not have any transcript of the oral evidence. I will mention in due course what the recorder said about them and their evidence.

The expert evidence

[62]In addition to the witnesses of fact, each side had a report from a surveyor by way of expert evidence. A significant part of the evidence from each of these concerned the 1915 Deed plan. I have described this plan at paragraph [21] above.[63]For Mr Steward, Mr Andy Foulkes provided expert reports. From measurements taken on the ground, he expressed an opinion as to the point from which the 125 foot measurement should be taken, on the northern boundary of Thornbury, by measuring the 159 foot dimension from the centre of an old drainage ditch to the east. (The presence of this ditch is consistent with the plans mentioned at paragraph [30] above, from at least one of which it might be inferred that the whole ditch was part of Sunnybank. On that basis, arguably, the 159 feet measurement should have been taken from the eastern side of, rather than the centre of, the ditch.) Adjusting, on the northern boundary, for what he said had been resurfacing of the road, and new kerbs, he said that the 125 foot dimension, taken at right angles to the road, came to within 200 mm of an existing half round timber post, which is on the boundary line contended for by Mr Steward. This post and another nearby to the south-east are broadly in a line with the north side of the drainage ditch, which according to the surveyed plan starts a little way beyond the latter of the two posts that I have just mentioned. Later he commented that what appear to be hedge markings on the 1915 deed plan are only indicative and cannot be taken as an indicator of the boundary position.[64]Mr Chris Ledger, for Mr and Mrs Gallop, made a report dated 28 April 2008 (partly by reference to an earlier report dated 27 September 2007) after a number of visits to the site, one of which, in August 2007, was a joint visit with Mr Foulkes. He referred to the drainage ditch, carrying outflow from the septic tank and also surface water from Thornbury. He expressed the view that this would have been constructed by the Smith family when Thornbury was built. He also spoke of a ditch to the south of the hedge, along the concrete road, and mentioned that this ditch had been extended into the drainage ditch in the position of the septic tank outflow. (Since it is now established that there never was a ditch, properly so-called, to the south of the hedge, what is left of this observation is that there is some connection with the drainage ditch from the south at this point.) On the assumption that there had been a ditch to the south of the hedge, he expressed the opinion that the southern edge of that ditch was the boundary. This was supported, he said, by the marking on the 1915 deed plan, which shows a hedge within the pink and blue land along the southern boundary, the omission of a ditch being due to the small scale of the plan. He also found support for this from the presence in the hedge of mature trees which had been there for a long time. His theory was that the pink and blue land had once been a field, or part of it, and that when it was first conveyed away, the purchaser would have dug a ditch on the southern boundary and planted a hedge inside their property next to the ditch, that hedge being the origin of that which still exists, and the southern edge of the ditch being therefore the boundary.[65]As regards the deed plan, he said that the plan shows the whole hedge as within the pink and blue land. He took a line for the 125 feet measurement which ran parallel to the side of Thornbury and about 6 feet 6 inches to the west of it. The house, of course, did not exist in 1915, but his theory was that the house would have been built with its side parallel to this internal boundary. He also said he thought that there would have been an existing boundary feature dividing the pink from the blue land – either already in existence in 1915 or constructed shortly after the partition. He said he had been told by Mr and Mrs Gallop that they had found a very old wall in the position of the partition line, part of which was still visible in the hedge at the north. The existence of that wall, and the need for access, including with scaffolding, between it and the house, suggested to Mr Ledger that the house would have been built with its side parallel to the wall. On that basis, the line would end at the south at a point a little to the west of that adopted by Mr Foulkes. Because of the alignment of the concrete road there, this southern point is closer to the road than Mr Foulkes’ southern point. That confirmed Mr Ledger’s opinion that the ditch to the south of the hedge was on the boundary between Thornbury and the land to the south.[66]It is now clear that there never was a ditch to the south of the hedge, and Mr and Mrs Gallop’s belief that there was derived from a misunderstanding, and an appearance created by the lie of the land after the laying of the concrete road by Mr Steward. That, therefore, undermined substantially Mr and Mrs Gallop’s alternative case, that the boundary lay to the south of the hedge. It did not, however, by itself prove Mr Steward’s case, whether that was taken as being that the boundary was the hedge (as he said in his pleadings) or lay north of the hedge, along the northern edge of the drainage ditch (a case which he asserted in his evidence and to some extent by the position of the marker posts which he had erected in April 2006), nor did it deal with any of the issues of adverse possession, raised on both sides as an alternative to their main cases.

The judgment

[67]In her judgment, the recorder summarised the cases advanced by each party as to the true boundary, including Mr and Mrs Gallop’s alternative case introduced by amendment. She then described in outline the title to each party’s land. Having referred to the 1915 Deed she said this:
“Unhappily the conveyance dividing the two pieces of land on either side of the disputed boundary is no longer available. As a matter of law only actual deeds of partition between the two parcels of land are of real importance. See Sara on Boundaries and Easements (3rd Edition.) I accept the Claimant’s submission that this makes sense, otherwise such a deed as is presented by the Defendants could be self-serving. The 1915 Deed of Partition is therefore what Sara describes as “other deeds” (see paragraphs 1.01 and 2.02). I therefore have to consider other topographical evidence.”
[68]That proposition assumes that the two pieces of land were once in common ownership. If they had been she would be right to say that the conveyance by which one was conveyed away would be critical. As it is, we have to proceed on the assumption that there may not have been such a transaction. On that footing, the statement that only deeds of partition between the two parcels of land are important is not helpful. As for the possibility that the 1915 deed is self-serving, while there could be a risk of that, that factor is something to be evaluated when considering the significance of the deed. It is not a reason to disregard the deed. It must be relevant to consider all available evidence as to what and where the boundary lay. If the boundary was not created by a conveyance of one parcel by the common owner of both, it will have been created by one or more factors including topography and use, and possibly express or implicit agreement.[69]The recorder then referred to the history of the ownership of Thornbury, including the position of Mr and Mrs Steer. At paragraph 19 she referred to Mr Steward having asserted that Mr Steer had put in the septic tanks. She did not accept that assertion (which, it seems, Mr Steward had withdrawn at an early stage of the trial) and she accepted Mr Steer’s evidence that the septic tanks were there when he bought the house, and that it seemed likely that they had been installed when the house was first built.[70]Turning then to the boundary, she referred at paragraph 21 to Mr Steward’s case as to the boundary as being marked by letters A to E on a plan (a version of that annexed to the Particulars of Claim, extending a good deal further east than the land which Mr and Mrs Gallop owned when the proceedings began), and said “the whole line of this boundary is or was constituted by a hedge”. Then at paragraph 22 she turned to the ditch. She rejected Mr and Mrs Gallop’s case as to a ditch to the south of the hedge, and accepted that there was a ditch to the north of the hedge with water running through it. She discussed the ditch in more detail later in the judgment. Before that, she referred to Mr and Mrs Gallop’s evidence as to what they found on first buying Thornbury. She quoted Mrs Gallop’s observation that the land was completely overgrown with bushes nettles and brambles, and the boundaries were ill-defined with no adequate fencing. She commented that “it follows that the Defendants had little idea where the boundary was between their land and the Claimant’s. The only obvious marker was the hedge.”[71]She moved on to the evidence of Mr and Mrs Gallop as to cutting down the hedge and as to what Mr Steward said to the contrary. She said at paragraph 25 “I accept the Claimant’s evidence about the hedge. I have no doubt at all, and find as a fact that there was a substantial hedge in the position described by the Claimant, and that that must have been obvious to the Defendants, who cut down substantial parts of it for their own purposes.”[72]Under the heading “History of the Hedge”, at paragraph 26, the recorder reiterated Mr Steward’s position as being that “the hedge forms, and has always formed, the boundary between the two properties, and that it is his hedge”. She referred to points made in support of this by Mr Steward, including that Mr and Mrs Steer had asked for his permission to plant conifers in place of the oak tree that had blown down. She accepted his evidence on this.

(d) she said this:

“Mr Steer when he gave evidence denied all knowledge of planting conifers. I have to say that I found Mr Steer an unsatisfactory witness. He struck me as a man with a grievance against the Claimant apparently based on what he regarded as untrue statements made by the Claimant in these proceedings. He denied ever having met the Claimant, which I find frankly incredible, given that they were neighbours for a period of five years, even allowing for the fact that he was a seaman and therefore away for part of the time. I prefer the Claimant’s evidence as to the planting of the conifers. I find that on a balance of probabilities the Steers did ask permission to plant some fir trees in the gap in the Claimant’s hedge, and the Claimant gave them permission. It follows that the conifers were part of the Claimant’s hedge. I also accept the point made by Mr Lofthouse in his Closing Skeleton Submissions that Mr Steer recoiled when asked whether he ever cut down the hedge. I think it is a correct inference to be drawn from his reaction that he regarded the hedge as nothing to do with him.”
[73]I note at this stage a small point made by Mr Morshead, namely that Mr Steer’s denial of having ever met Mr Steward was supported by Mr Steward’s acceptance of what Mr Steer had said in his witness statement at paragraph 7 (see paragraphs [58] and [60] above). I do not find that a compelling point, since what Mr Steward went on to say in his witness statement about the conifers clearly asserted in terms that there had been direct dealings between himself and Mr and Mrs Steer. That is a point which cannot be assessed without reference to the transcript. We were told that Mr Steward was recalled to give further oral evidence in November, and presumably he would or could have been cross-examined on this conflict within the evidence. The history of the title to Thornbury summarised above shows that Mr and Mrs Steer owned the land in October 1987, at the time of the great storm.[74]The recorder then referred to Mr Steward, his father and grandfather having maintained the ditch on the north side until January 2008. Next she turned to the history of the ditch at paragraph 27. I must mention quite a lot of what she said on this topic. She referred to Mr and Mrs Gallop’s case as being that, at the relevant point, it was a drainage ditch which had been dug by Mr Aubrey Smith and his father when Thornbury was built, to carry away any outflow from the septic tanks. She referred to Mr Steward’s evidence that when he saw that the outflow of the septic tank had been directed into this ditch he thought it was “a bit of a cheek” (see paragraph [56] above). She noted that there were two drainage pipes leading into the ditch, one from the west and the other from the north. The former is presumably from the septic tanks’ outflow and the latter from the surface water drainage off the roof of Thornbury. She said that she accepted Mr Steward’s evidence that the ditch had been in its present position for as long as he could remember, and that it ran east. That is an interesting comment, because on his acceptance that the ditch provided the outflow for the septic tanks, and that the latter had been installed in 1938, when Thornbury was built, the ditch would have been there as long as he could remember even if Mr Aubrey Smith’s reported version was correct. It would have been dug in 1938, and Mr Steward was not born until 1942. Moreover I find it difficult to see how Mr Steward could have made the comment about “a bit of a cheek” if the outflow had always been in its place since 1938.[75]Then she said this:
“The presence of the two drainage pipes suggests to me that on a balance of probabilities the outflow from the septic tank(s) was directed into the nearest existing ditch; i.e. the Claimant’s. The Defendant’s version of events, that Mr Aubrey Smith dug out the ditch seem to me to fit uneasily with the topography of the land on the ground and as depicted by Mrs Jacobs in her picture, to which I will refer later.”
[76]She went on:
“It is the Claimant’s case that the ditch continued up the picture beyond the outlet pipe and the white post to the west, for some way, although not as far as the Newport Road. The Claimant does not suggest that the west-running ditch was a functioning ditch, but that it eventually smoothed in to the bank, and becomes the mound which can be seen in the photograph I have been shown of the winter scene of the property. The Defendants deny that this is so. Assisted by the site view, I have no doubt that it did, as the Claimant says, continue up the photograph beyond where Mr Flux is standing. It looks to me from the photographs as though someone, probably the Defendant or someone on their behalf, has filled that part of the ditch in. My view reinforced by the second picture as 1 C1 showing a foxglove in the middle. This does not accord with the proposition that Mr Aubrey Smith and his father dug the ditch, because in that case it would start where the outlet pipe comes out. I accept the Claimant’s evidence that there was always a ditch there which he kept clean and tidy, and which he regarded as his ditch.”
[77]At the end of her long paragraph 27 about the ditch she also said this:
“Further there is an inlet coming from the left into the ditch, which can also be seen in photograph C1 straddled by Mr Flux. I accept Mr Lofthouse’s submission that whoever put that there believed they had the right to do so. Someone put it there to take water from the upper water table; i.e. the Claimant’s land, to the east. This is consistent with the Claimant’s ownership of the ditch, rather than the Defendants’.”
[78]I will need to examine several of these propositions later.[79]The recorder then moved on to deal with the more recent history and the allegations of encroachment. At paragraph 29, having mentioned the old post and wire fence which Mr and Mrs Gallop said they found in the overgrown hedge, she said that Mr Steward said it did not mark the boundary “and had been used by Mrs King ... to keep her ducks in”. She also said that Mr and Mrs Gallop accepted that the post and wire fence had nothing to do with the disputed boundary. Two points arise immediately from that. First, Mr Steward’s evidence, at least in his witness statements, was that the old fence was put up by him to keep Mrs King’s ducks out from his property, rather than by her to keep them in. If it had been put up by her, it would presumably have been on or north of the boundary line. Secondly, the recorder’s comment about the appellant’s abandonment of reliance on the fence was, we were told by Mr Morshead, simply wrong. The appeal bundle includes a note made by Mr and Mrs Gallop’s advocate headed “Summary final submissions”, annotated “said verbally”, in addition to fuller submissions dated 10 December 2008 and a second set, in response to Mr Steward’s closing submissions, dated 18 December 2008. Presumably this was the advocate’s aide memoire for his closing submissions, and was made available to the recorder and to Counsel for Mr Steward. On the second page there is a heading “Deal with fence”, with notes about aspects of the evidence relating to fences – Mr Steer’s winter photograph and Mr Steward’s version about Mrs King’s ducks, and that the latter must be wrong because of the 1983 photograph. It would be legitimate to say that the ditch had assumed greater significance during the course of the proceedings than it had at the start, and had partly superseded the old fence in importance because of the shift in Mr Steward’s case. But it does not seem to be correct for the recorder to ignore the case (and therefore the evidence) about the old fence on the footing that it was no longer relied on, and certainly not on the basis that it was accepted to be irrelevant.[80]The recorder continued to deal with the sequence of recent events, and then dealt with the expert evidence. Having done so, she came at paragraph 39 to the relevant principles of law. She noted that the deed which divided the two parcels of land either side of the boundary “is no longer extant”. The 1915 deed, she said, was not really of any help, because of the general boundaries rule and the limitation of ordnance survey mapping as a source of precision in relation to boundaries. Then she described the hedge and ditch presumption and its rationale. She said that the case for Mr and Mrs Gallop was that the presumption was displaced because the ditch had been dug by Mr Joe and Mr Aubrey Smith as an outflow ditch for the septic tank. She said that, as already stated, she rejected that evidence, and went on: “It follows that in my judgment the hedge and ditch rule applies”.[81]In the next section of her judgment she went on to make comments on the witnesses. She commented favourably on Mr Steward and his family (presumably his sister and his son) as “country people” with a wide and deep knowledge of the land going back many years, and said that they were straightforward and honest, trying their best to assist the court. She contrasted them with Mr and Mrs Gallop who she said were not essentially country people. She commented on their “fear of what would be regarded as normal incidents of the countryside”, such as using hawthorn trees in hedges, instead of which Mrs Gallop wanted to plant Leylandii, lest her children might be injured, and finding snakes in overgrown areas of land, leading her to want to clear the land. She went on to say “Quite apart from who is or who is not a country person, I have to say that I did not find the Defendants or their witnesses to be satisfactory witnesses”, and she gave some reasons for that.[82]She said that the hedge on the disputed boundary was clearly visible in 2005 when Mr and Mrs Gallop first moved to Thornbury, and that despite this they went ahead and cleared the land without making enquiries of Mr Steward, an attitude which she called “casual to say the least”. Moreover she said that when they laid the base of the aviary, they realised that they were building on Mr Steward’s land. She spoke of the old post and wire fence and said “this is the fence which it is now accepted was used by Mrs King to keep her ducks in”.[83]Coming to her conclusion, she said this at paragraphs 48 to 50 “48. I accept Mr Lofthouse’s submission that the right approach to this case is to look at what makes sense on the ground.49. I find that the general lie of the land is as described by Mr Carter, which would mean that the hedge on the disputed boundary belongs to the Claimant as does the ditch on its far side. I find that the boundary between the two properties lies along the line contended for by the Claimant.50. In view of my findings it is unnecessary for me to deal with the issue of adverse possession.”[84]On that basis she granted a declaration as asked, granted an injunction to restrain further trespass, and awarded £300 damages.[85]Following further argument, she awarded costs to Mr Steward, including indemnity costs as from 11 June 2008, three months before the trial. That gave rise to a separate ground of appeal.

The grounds of appeal

[86]The grounds of appeal were presented under six heads. The fourth related to the order for costs, and the fifth to a detail of the wording of the order. Neither of these arises if the appeal is otherwise successful. Because I have concluded that the appeal should be allowed on other grounds, I do not need to deal with these points. That leaves four grounds: i) The first is that the recorder erred in law or fact or both in her approach to the determination of the boundary. Under this head, Mr Morshead advanced a contention by reference to the effect of registration of the title to Thornbury, and he contended that she had misapplied the hedge and ditch presumption and that she wrongly rejected or misinterpreted the 1915 deed. ii) Next it is said that she erred in her factual findings relating the acts of ownership and other matters relied on as to “what makes sense on the ground”. iii) The third ground is that the recorder did not deal with Mr and Mrs Gallop’s defence under the Limitation Act. iv) Lastly, it is said that the recorder appeared to be biased against Mr and Mrs Gallop. This ground is of a quite different nature from the others relied on, so I will leave it until later, and first deal with the arguments under the first three grounds of appeal.

The effect of registration of the title to Thornbury

[87]Mr Morshead submitted that, since Thornbury is registered and Galley Horne is not, the decisive moment was that of the first registration of Thornbury, in March 1987. Accepting that registration does not define a boundary, because of the general boundaries rule, he nevertheless argued that the statutory magic of registration does have an effect as regards the land properly to be regarded as comprised in a title once registered, though of course subject to rectification. He pointed to the fact that, in general, the effect of registration is to confer title on the registered proprietor even if he would not have had title to the land under the unregistered conveyancing system, and therefore even if he did not have such a title before it was registered.[88]In support of this he showed us Konstantinidis v Townsend (No 2) [2003] EWCA Civ 538. He relied in particular on paragraph 20 of the judgment of the Vice-Chancellor, Sir Andrew Morritt:
“It is unfortunate that the conveyance to Mr Longstaff was not produced at the trial, but its terms will have been the basis for the first registration of the title to No 6 Further Granary Cottages on 17th September 1990. Accompanying the application for that registration there will have been “sufficient particulars, by plan or otherwise, to enable the land to be fully identified on the ordnance map”: see Land Registration Rules 1925, rule 20. There will then have been made all those inquiries, searches and examinations as are prescribed by rules 25 to 35 before the title was registered. Accordingly, in my view the property register of title No NK 94208 is the best evidence of what was conveyed to Mr Longstaff. That refers to the file plan which, in accordance with Land Registration Rule 278, is not precise as to the boundaries. In these circumstances, it was and is essential to ascertain what physical features existed on the ground in 1990 capable of delineating the relevant boundary.”
[89]In that case, first registration followed immediately upon the conveyance in 1990 by which the boundary was created. It was, therefore, particularly inept for the parties not to have produced that conveyance to the court, and to require that secondary evidence, that is to say the details of registration, be used to show what was conveyed. In the present case, so far as is known, the boundary was not created by any conveyance, and the respective parcels of land may always have been in separate ownership. What was said in that case does not justify Mr Morshead’s proposition that the moment of first registration is decisive where the boundary already existed before the latest conveyance before registration. Physical features on or near the boundary are often relevant to the determination of a disputed boundary line, but there is no special significance to the features that existed in March 1987 in the present case.[90]Mr Morshead’s submissions on this touched on the significance of the general boundaries rule, and its relationship to the statutory effect of registration under section 5 of the Land Registration Act 1925 (now section 11 of the Land Registration Act 2002).[91]The general boundaries rule was, at the relevant time, set out in rule 278 of the Land Registration Rules 1925:
“Except in cases in which it is noted in the property register that the boundaries have been fixed, the filed plan shall be deemed to indicate the general boundaries only. In such cases the exact line of the boundary will be left undetermined – as for instance whether it includes a hedge or wall and ditch, or runs along the centre of a wall or fence, or its inner or outer face, or how far it runs within or beyond it; or whether or not the land registered includes the whole or any portion of an adjoining road or stream.”
[92]The history of this provision is described in Lord Hoffmann’s speech in Alan Wibberley Building Ltd v Insley [1999] 1 W.L.R. 894 at 896-7. As he said at 897C: “The precise boundary must, if the question arises, be established by topographical and other evidence”.[93]Sometimes issues arise as a result of registration which are not limited to identifying the precise line of a boundary. In such a case it may be plain that the registered land does include a particular parcel of land which is claimed by someone other than the registered proprietor. That sort of case may not be about boundaries. In such a case the statutory magic may well apply, subject to rectification. But the present dispute is a paradigm of a case where what is at issue is “the exact line of the boundary”; that has been left undetermined by the registration of Thornbury in 1987. It must therefore be resolved by reference to other material, in particular the topographical features and the evidence as to how they stood at times in the past and how they were treated by the parties and their predecessors in title.

The relevance of the 1915 Deed

[94]At paragraph 13 of her judgment, in a passage which I have quoted at paragraph [67] above, the recorder referred to the 1915 Deed in terms which suggest that she regarded it as of no importance, because it was not the deed by which the boundary was created. She seems to have believed that there would have been a conveyance, once upon a time, by which the boundary was created, whereas it seems to me that this is altogether uncertain. She said that the 1915 deed was not of “real importance”, and disregarded it because it might be self-serving. That seems to me an odd comment in relation to a deed of this kind. Of course, since Mr Steward’s predecessor in title was not a party to it, it is not in any sense binding on him. But it looks as if it was prepared with care at the time. The plan must have been prepared, or at least adapted, for the purposes of the particular transaction, and there is no reason to suppose that there was any ulterior motive, or that those involved intended anything other than to record the current position and to divide the land, which they then held in undivided shares, equally between them. It seems to me that it is part of the history, and that regard ought to be had to it, as also to other old conveyancing deeds in the history of each title.[95]The Ordnance Map is the basis of all Land Registry plans, and it is the practice of the Ordnance Survey to show the position of a physical feature, such as a fence, wall or hedge by a single firm line representing its centre on all their maps, unless a map itself contains contrary information: see Ruoff & Roper Registered Conveyancing, paragraph 5.012. As it happens, the 1915 Deed referred to the pink land and the blue land as parts of a single Ordnance Survey enclosure, number 402. That, therefore, is also part of the history. It does not itself show what the boundary was, but it is indicative that there was a boundary feature of some kind, as there had been at the date of previous editions of the Ordnance Survey. It is at least relevant that a boundary was so marked.[96]More significance was attached at trial to the deed plan for the measurements marked on it. That arose because Mr Steward placed reliance on it in his reply as well as in his skeleton argument for the trial, but also because of what Mr Ledger drew from it. He had measured the 125 feet from a point on the northern boundary which he determined from the two dimensions marked on the plan as regards that boundary. He took the 125 feet along a line at (or almost at) right angles to the northern boundary, and said that it came to a point south of the hedge, and just north of the concrete road. Since it is known that the concrete road was newly laid by Mr Steward in relatively recent times, it can have no possible relevance to the ascertainment of the boundary line.[97]It is reasonable to assume that the dimensions marked on the 1915 Deed plan were taken from measurements made at the time and for the purpose of the division of the land into equal shares for the purposes of the partition, and presumably made with reasonable care. I do not, for my part, see that there is any reason to suppose that the partition line follows or corresponds to any feature on the land which existed at that time, either along its length or at either end. The purpose of the line would be to ensure, as nearly as possible, that each of the two parts resulting from the partition was equal to the other in area. We have no reason to suppose that either part had any feature of greater value than the other, so we can assume that the aim was a division into equal surface areas.[98]At paragraph 38 of her judgment the recorder referred to an issue as to where the northern end of the 125 feet dimension started, and to the verge and the extent of the metalled carriageway of the road, and the presumption that the adjoining owner owns the subsoil of the road, up to the middle point. I do not myself see the relevance of this. It is clear from the plan that the measurement is taken from the northern boundary of the land as it then stood, which is south of the road. There is a marking on the plan which suggests that there was a hedge along that boundary, which seems not unlikely. If that was correct at that time, the dimension must have been taken from that hedge. It may have been from the northern side of it, rather than the middle, but I see no reason, either in principle or from the way the plan is drawn, to suppose that the northern end of the dividing line is farther north than the far side of the northern boundary feature, which may well have been a hedge. Accordingly the evidence as to whether the metalled surface of the road had been widened or not since then seems to me to be beside the point.[99]It is possible that, after the partition, a boundary feature was created along the dividing line, to separate Mr Barnes’ land from that of Mr and Mrs Mackett. There seems to have been no evidence of that, according to the written evidence, apart from an indirect reference in Mr Ledger’s report to his having been told that Mr and Mrs Gallop had found the remains of a wall in the northern boundary hedge at that point. It is, however, legitimate to assume that when Mrs Miriam Smith had Thornbury built in 1937-8, not only was it within the blue land, which is what she then owned, but also that its septic tanks were within the blue land. It was only later that the ownership of the whole of the pink and blue lands was reunited, in 1944, before being separated again in 1975.[100]The recorder referred to the divergence of view between the experts as to how the partition line should be drawn on the ground, and in particular to their disagreement as to the precise alignment of the line as it went south, as well as to the question where the line should start, at its northern end. In her paragraph 39 she said that the 1915 Deed “does not really help in respect of the boundary” now in dispute, because, she said, of the general boundaries rule. With respect, that does not follow. The general boundaries rule means that there is no special significance to the boundary as shown on the filed plan once the title to land is registered. It requires one to go back to what would have determined the boundary under the unregistered system of conveyancing. The 1915 Deed is one of the documents relevant to that exercise.[101]Later, however, she did address Mr Ledger’s theory, based on his contention as to where the dividing line should run, because Mr and Mrs Gallop’s alternative case, introduced by amendment as I have mentioned, was based on this theory. At paragraphs 44 to 47 she rejected Mr Ledger’s opinion. She gave three reasons. One was the doubt as to where the northern end of the line was, because of changes in the width of the road; as I have mentioned, it seems to me that this is not a factor which could affect the position of the line. The second is that “it would be reasonable to expect the north/south line to end on a natural feature, for example a hedge or ditch”, whereas on Mr Ledger’s argument it does not. The third was the general boundaries rule, as to the irrelevance of which I have already commented.[102]There is substance in the recorder’s second point, at least to this extent, that the person or persons responsible for drawing the dividing line in 1915, aiming to divide the whole parcel of land into two equal portions, should, as it seems to me, be taken to have drawn a line from the then northern boundary feature of the land (then, it seems, probably a hedge running along the southern verge of the road) to the then southern boundary feature. It would not necessarily run to a particular feature along the boundary, such as a tree or post, since it would be a matter of chance whether an exact division of the land would have as convenient an outcome as that. If the southern boundary was then thought (by those concerned with drawing the line) to be a hedge, we cannot know whether the line was drawn to one side or the other of the hedge, or to the middle. I agree with the recorder that if the 125 feet measurement takes one to a point in the field south of the hedge, that would make no sense, and it would provide no reliable support for an argument that the true boundary did lie south of the hedge. On the other hand, on the footing (which I regard as a reasonable assumption) that the line was carefully drawn and measured at that time from northern to southern boundary features, if it appears to include both the northern and the southern boundary hedges, it seems to me that this would be relevant evidence as regards what was then seen as being the southern boundary of the pink land and the blue land. Mr Foulkes put forward a different line, ending up slightly farther to the east, for the 125 foot line, but even this ended up on or slightly to the south of the southern side of the hedge.[103]Mr Morshead also pointed out that Mr Ledger’s line puts the septic tanks of Thornbury within the blue land, and therefore within the land which Mrs Miriam Smith owned at the time, whereas on Mr Foulkes’ line there would have been a trespass by Mrs Smith, having installed her septic tanks in part on the pink land which she did not own. The recorder did not mention this factor when considering the position of the dividing line. It seems to me to be relevant as giving possible support to Mr Ledger’s line.[104]I therefore accept Mr Morshead’s submission that the recorder paid insufficient regard to the implications of the 1915 Deed and its plan, and misdirected herself as to its possible significance.

The ditch: the facts

[105]As is apparent from the parts of the judgment which I have quoted, the recorder decided in favour of Mr Steward on an application of the hedge and ditch presumption, and on the basis that the ditch on the northern side of the southern hedge was Mr Steward’s ditch. Mr Morshead submitted that the recorder’s findings of fact on this were wrong, and that her conclusion of law was also wrong.[106]So far as the facts are concerned, the contentious issues were, first, when the part of the ditch which formed part of, or ran along the edge of, the blue land just south of Thornbury was created and, secondly, whether it had ever extended farther to the west. It is not in dispute that there is a ditch along the southern side of the land to the east of the blue land, where the brickworks used to be, and there was such a ditch as early as 1921, with a hedge to the south of it. This runs a long way to the east, towards Ventnor Road. It is also clear that, at that time, there was also a ditch running from north to south, to the east of a hedge along the eastern side of the blue land. That hedge and ditch appeared to be treated as being part of the blue land in the 1921 lease plan referred to at paragraph [30] above, and the ditch is also so treated at least in the 1937 conveyance also referred to in that paragraph.[107]Mr Steward did not mention the ditch at all in his first formulation of his claim in the Particulars of Claim, despite it having been mentioned in his solicitors’ letter in February 2006 (see paragraph [43] above). Then, and for some time thereafter, he contended that the hedge was the boundary, not that the boundary lay north of the hedge, along the line of a ditch, or along a line drawn by reference to a ditch. He referred in passing, and in confusing terms, to a ditch in his first witness statement. In the course of that he said that Mr Steer had put in a new septic tank and had put the outflow directly into what Mr Steward regarded as his ditch. Then in his second he said that it had extended for 75 feet farther to the west of where it now starts (though he appeared to accept that this part was not a functioning ditch), and asserted that it had been filled in successively by various owners of Thornbury up to and including Mr and Mrs Steer. However, as I have mentioned, he agreed in terms with Mr Steer’s later evidence that he had not put in a septic tank, and that those which are still there are the original ones put in at the time when Thornbury was first built. He said he had accepted this at the outset of the trial. He also agreed specifically, in his third witness statement, with Mr Steer’s statement that the ditch had never extended farther west than it now does. By that time he had given his principal oral evidence. He was recalled in November, no doubt to be cross-examined on his latest witness statement and such conflicts as it demonstrated with Mr Steer and other recent witnesses for Mr and Mrs Gallop. We do not have a transcript of what he said, but I find it difficult to suppose that any question was asked in cross-examination at that stage which would have enabled him to recant his acceptance of Mr Steer’s statement that the ditch had not gone any farther west than it now does. If there had been such evidence, it seems to me that the recorder would have needed to have referred to it and explained why she preferred one version rather than another.[108]Instead of that, the recorder accepted, apparently on the basis of what she said was Mr Steward’s evidence, and expressly on the basis of what she had seen at her site visit, that it had extended farther west and had been filled in “by someone, probably the Defendant or someone on their behalf”, an allegation which, so far as I am aware, Mr Steward had never made.[109]Mr and Mrs Gallop’s case on the facts was based on what Mr Aubrey Smith had told them before his death, namely that he had dug the ditch out to take the outflow from the septic tank (and, as it turned out, also the drainage outflow from the rainwater falling on the roof of the new house). His mother then owned the whole of the blue land. So he could have dug a ditch at that time as far as the eastern end of the blue land, at which point it would meet a drainage ditch running from north to south along the eastern side of the blue land and another running eastwards along the south of the brickworks land. That would not be inconsistent with Mr Steward’s statement that the ditch had been in its present position for as long as he could remember. The fact that the outflow from the septic tank went into the ditch in 1938 does not seem to me to be compatible with his evidence that when he saw this he thought it was a bit of a cheek. Moreover, since the outflow and the ditch had been in their present position since 1938, it must cast doubt on his contention that he maintained the ditch regularly, since if he had done so he would have known about the outflow long before 1983.[110]The recorder rejected Mr and Mrs Gallop’s case as to the origin of the ditch, based on Mr Aubrey Smith’s statement to them, because it seemed to her “to fit uneasily with the topography of the land on the ground”. Unfortunately she did not explain what she meant by that or what she had in mind. She also referred to Mrs Jacobs’ picture, which I have mentioned and, later, to there being an inlet into the ditch from the south (see paragraph [77] above). The latter point is, no doubt, legitimate. As to Mrs Jacobs’ picture, without having seen a legible version of this, it is difficult to assess what weight could properly be put on it, but it seems surprising if it could be relied on as showing the precise location of a connection between one ditch and another, unless she had had a special reason for noting or remembering it. Her picture was put forward as being her recollection in 1993 of the lie of the land in 1949 (when she was five years old). On Mr and Mrs Gallop’s case Mr Aubrey Smith had already dug the outflow ditch by then so, in itself, the existence of a connection in 1949 is not inconsistent with their case. However, it is a fair point that, if the outflow ditch had been dug by Mr Smith, Mr Steward’s grandfather would not have had a right to connect to it and to drain his land through it. So far as I can see, the photographs of the land to the south of the hedge do not show any sign of the drainage ditch of which Mrs Jacobs spoke, but it is said that her evidence was that this ditch had not been there for about 30 years. I do not know to what extent the existence, line and history of that ditch, and the precise point at which it joined the other ditch, was explored in evidence at the trial.[111]I have to say that I regard the recorder’s findings about the ditch as somewhat undermined by her quotation, without adverse comment, of Mr Steward’s evidence that he regarded the placing of the outflow from the septic tank into the ditch as objectionable, and by her finding that the ditch had extended farther west and had been filled in by Mr and Mrs Gallop, or on their behalf, when Mr Steward had never contended that they had filled it in, as opposed to their predecessors in title having done so, and had later accepted that it had not extended farther west, as well as by her unexplained rejection of the Aubrey Smith version as being inconsistent with the topography.

The hedge and ditch presumption

[112]If a hedge and a ditch exist along a boundary, the presumption is that the boundary lies along the edge of the ditch on the far side from the hedge. This was explained as long ago as 1810 by Lawrence J in Vowles v Miller 3 Taunt 137 as follows:
“The rule about ditching is this. No man, making a ditch, can cut into his neighbour's soil, but usually he cuts it to the very extremity of his own land: he is of course bound to throw the soil which he digs out, upon his own land; and often, if he likes it, he plants a hedge on top of it.”
[113]The recorder stated, correctly, that the presumption involves two distinct propositions. The first is that the ditch was dug after the boundary came into existence. Since it seems that the boundary has existed for over 150 years, and possibly for ever, this can be taken as read in the present case. The other is that the owner on one side created the ditch on his own boundary, but within his own land, and threw the soil back onto his own land, thereby creating a bank on which the hedge was later grown. The presumption was considered recently in Alan Wibberley Building Ltd v Insley which I have mentioned above. In that case, as in all other relevant cases of which I am aware, but unlike the present case, the ditch ran along the whole length of the boundary in dispute. In that case, like the present, there was no indication that the two parcels of land on either side of the boundary had ever been in common ownership.[114]The recorder referred to the argument for Mr and Mrs Gallop that the presumption did not apply because the ditch had been dug by Mr Aubrey Smith, which she had rejected on the facts. She then said that it followed that the hedge and ditch rule applied. With respect to her, it seems to me that this did not follow simply from her rejection of the evidence put forward for Mr and Mrs Gallop as to how the ditch came into existence. It would be necessary to consider what the probabilities were as to how and when the ditch came into existence. Since the boundary had existed for as long as anyone can tell, and at least from the 1860’s, according to the conveyancing documents, it would be necessary to form a view as to whether the ditch was created before any hedge came into being along the relevant part of the boundary. Since, even on Mr Steward’s most extreme case as to the extent of the ditch, it never went along the whole boundary as far as Newport Road, that is something that would have to be taken into account when assessing the probability as to when, how and why the ditch came into existence.[115]Among the matters which ought to be taken into account in considering that question are the older plans in the conveyancing history. The 1915 Deed plan has markings along the southern boundary which may well indicate a hedge. The same is true of the 1910 and 1914 conveyances in Mr Steward’s title. If these show (as they seem to) that a hedge existed already a hundred years ago, the application of the hedge and ditch presumption presupposes that the ditch was dug even before this time. It would also be necessary to account for the fact that the ditch only runs along part of the boundary. Why should the southern owner have dug a ditch in that way?[116]The second aspect of the presumption cannot explain the existence of the whole hedge. Moreover, if the northern edge of the ditch is the boundary where the ditch does exist, logically the boundary farther west might be the continuation of that line, itself somewhat to the north of the hedge, rather than having a boundary line which follows the northern edge of the ditch for the length of the ditch, but then turns south to run along the northern edge of the hedge.[117]Unless those oddities can be explained on a probable basis, it seems to me that it must be at least as likely, if not more so, that the ditch was created at a time when the hedge already existed, and for the convenience of the northern owner. That would be entirely consistent with the theory that Mr Aubrey Smith dug it in 1937-8, to accommodate the outflow from the septic tank and for the rainwater, and to carry those eastwards to the then boundary where the new ditch would meet the junction of two existing drainage ditches, one of them, it seems, already part of the property then belonging to Mrs Miriam Smith: see paragraph [30] above.[118]I have to say that the recorder’s reasoning in relation to the hedge and ditch presumption seems to me to be inadequate. Taken with the way she dealt with the 1915 Deed and its plan, there is real force in Mr Morshead’s submission that the decision that the boundary is the northern side of the ditch was reached without a sufficient analysis of the principles lying behind the presumption and their application to the facts of the case.[119]Before summarising my conclusion on this, I will deal briefly with the third ground of appeal, and mention some of the matters relevant to the last ground.

The appellants’ Limitation Act defence

[120]As I have quoted at paragraph [83] above, at paragraph 50 of her judgment the recorder said that she did not need to deal with the issue of adverse possession. Each side had relied on adverse possession as a fall-back. Her finding in favour of Mr Steward on the true line of the boundary meant that she did not need to decide whether he would have succeeded in showing an adverse possession title. It did not dispense with the need for her to decide whether his title was extinguished, as regards the area of alleged encroachment, by adverse possession on the part of Mr and Mrs Gallop and their predecessors in title.[121]The case for Mr and Mrs Gallop in this respect was that they had not gone any farther south than the line of the old post and wire fence which they found in the hedge. Mr Steward said that he had put this fence up, within his property, in about 1990 to prevent Mrs King’s birds coming over onto his land. The recorder seems to have misremembered this, because she refers to it as having been put up by Mrs King to keep her own birds in, in which case it would presumably have been on or north of the true boundary. However, Mr Steer’s evidence, and in particular his winter photograph, shows that there was a fence in about this position already well before Mrs King’s time, as early as 1983. Mr Steward did not claim that he or his father or grandfather had put this fence up. So it must have been put up by one of Mr Steer’s predecessors in title. On that basis, there seems to be at least an arguable case for Mr and Mrs Gallop that their predecessors in title enclosed an area as far south as the line of that fence, and excluded Mr Steward and his predecessors from it, and that they would have an adverse possession title to it, if it was farther south than the boundary determined according to the paper title.[122]The recorder made no finding as to what had been done in relation to the line of that fence, whether as to Mr Steward having gone north of it, or Mr and Mrs Gallop having done anything to the south of it. Their case was that they had never gone beyond the line of that fence. In the absence of findings on that point, it is impossible to deal with the Limitation Act defence. Accordingly even if the recorder was right in other respects, she failed to deal with a potentially viable defence which was relied on by Mr and Mrs Gallop. Correspondingly, even if, on Mr and Mrs Gallop’s appeal, it were possible simply to allow the appeal, Mr Steward’s limitation case would remain to be determined, without the necessary facts having been found.

Appearance of bias

[123]I have mentioned at paragraph [81] above a passage in her judgment in which the recorder commented unfavourably on Mr and Mrs Gallop as not being country people, and contrasted Mr Steward and his family in this respect. She also referred favourably to a Mr Carter, one of Mr Steward’s witnesses, as being a country person. According to a witness statement of Mr and Mrs Gallop’s solicitor, when returning from the site visit on the first day of the trial, the recorder mentioned, in the presence of Counsel for Mr Steward and a solicitor acting for Mr and Mrs Gallop, that she came from a farming family, that her father was a farmer and that she had been brought up on a farm. This is said to have been in the context of a discussion about the Isle of Wight countryside, and in itself appears entirely innocuous. (I should make it clear that we did not seek and do not have any comment from the recorder on what the solicitor says in this respect.) However, it is said that, when taken with the passage in her judgment to which I have referred, this shows that she was predisposed to favour country people.[124]For Mr Steward, Mr Weekes pointed out that in paragraph 41 the judge went on to say, for other reasons, that Mr and Mrs Gallop were not satisfactory witnesses. That is a fair point, but the appellants’ “fear of what would be regarded as normal incidents of the countryside” does not appear to have been part of what the recorder relied on to show that their evidence was not reliable. Nor is it apparent to what issue this comment did go. It is one thing to comment favourably on Mr Steward (and his family) as country people and to commend their evidence. It does not seem necessary or helpful to refer to Mrs Gallop’s fear, for her children’s sake, of a snake seen nearby or of the risk of injury from a hawthorn tree. Taken with the recorder’s reported comment when returning from the site visit, it could, it seems to me, be taken to imply a value judgment in favour of country people and against those not used to country ways and circumstances. Mr Morshead submitted that a fair-minded and informed observer might reasonably think that there was a real possibility that the recorder was predisposed in favour of country people, in a country context, and therefore in favour of Mr Steward and against Mr and Mrs Gallop.[125]Mr Morshead relied on a number of aspects of the recorder’s findings as showing a lack of balance on the part of the recorder as between the respective sides, and an undue readiness to favour Mr Steward and to accept his evidence without adequate critical scrutiny. I have already mentioned some of the points on which he relied. I do not need to go into further detail.

Conclusions

[126]I do not consider that the recorder took proper account of the 1915 Deed. It is part of the conveyancing history and needs to be considered for the light it can throw on the position on the ground as it was at that time, as do other plans from the early conveyancing history. It seems to me that it could be a legitimate inference from the deed plan that there was a hedge along the southern boundary of the land which then formed OS 402, and that, at the point on the northern boundary (apparently, another hedge) ascertained by the measurements on the plan, a measurement of 125 feet was taken southwards as far as the boundary feature on the south. It could also be a proper inference from what happened later that the septic tanks installed for the drainage of Thornbury were put in within land which belonged at that time to Mrs Miriam Smith. If that were correct, the dividing line should be taken to run to the west of, rather than through, the position of those tanks. On that basis it would also be right to take into account the fact that the measurements by both experts show that the 125 feet measurement comes to the south side of the southern hedge.[127]That would not by itself show that the correct boundary is the southern side of the southern hedge, rather than the middle or even the northern side. However, these various indications could tend to show that there was no ditch to the north of the hedge at that time. If there had been, and if it had been one to which the presumption appeared to apply (the presumption being already long established by that time) then those responsible for drawing the plan and measuring the dividing boundary could be expected to have taken the ditch into account, if it appeared to be a boundary feature. The 125 feet measurement appears to be inconsistent with there being a ditch as a boundary feature, as is the drawing of a hedge along the southern boundary. It would also have been relevant to take into account the depiction of a hedge on the northern boundary of Langtreys in plans such as that on the 1910 mortgage and the 1914 conveyance to which I have referred. I have already referred, at paragraph [41] above, to Mr Steward’s contention in the Reply that the 1915 Deed plan indicates that half the hedge is in each party’s land, so that the boundary would be the middle of the hedge. That would be a sensible and reasonable conclusion, and would be inconsistent with a conclusion that the boundary was north of the hedge, and certainly that it lay along the north side of the ditch (so far as it went).[128]Quite apart from that, in considering whether the hedge and ditch presumption applied, the recorder could not simply decide whether she believed the Aubrey Smith version of events. Even if she rejected that evidence, she had to come to a conclusion as to when and by whom the ditch was first dug. In seeking to answer that question, it would be necessary to account for the fact that the ditch only went along part of the boundary. As I have said, that itself shows that the presumption cannot explain the line of the whole of the hedge.[129]A number of factors would need to be taken into account in addition to whatever inferences should be drawn from the 1915 Deed plan and other old plans. These would include the presence of a connection with the drainage ditch from the south. But it seems to me that the recorder’s judgment does not grapple with these issues, on which it is, of course, fair to say that she may have had less assistance from the advocates appearing before her than we have had, with the benefit of able submissions from different advocates.[130]It is unfortunate, to say the least, that the formulation of the parties’ respective cases was in a state of some confusion. This cannot have helped the recorder. Mr and Mrs Gallop had taken up the misconceived idea of a ditch to the south of the hedge. Mr Steward had introduced his claim to a boundary along the northern side of the ditch despite not having pleaded it, and despite some of his evidence being completely inconsistent with it. The recorder had also gained the erroneous impression that she did not need to deal with any issue as to the position of the fence, when that was(a) the real case of Mr and Mrs Gallop and(b) central to the limitation issues, which needed to be resolved on one side or the other, however the case went in other respects.[131]The recorder did form a critical view of Mr and Mrs Gallop. So far as their credibility is concerned, it was part of her task to decide whether and to what extent she should accept their evidence. She did, however, make some apparently critical comments about them which do not seem to have formed part of her reasoning in relation to explaining her assessment of their credibility.[132]I do not need to decide the case on the basis of apparent bias, and I do not do so. By itself the comment attributed to the recorder while returning from the site visit was not in any way inappropriate or objectionable. However, antagonism between country and town people and attitudes does seem to have been an element in the case. The recorder may not have had the opportunity to appreciate that factor by the time of the site visit. In the light of that, and in the context of her remark after the site visit, it seems to me that the way in which she expressed herself in paragraph 41 of her judgment is unfortunate, in that the comments about Mr and Mrs Gallop not being country people appear to be gratuitous and unnecessary. I would not accept Mr Morshead’s other criticisms of the recorder in relation to this ground of appeal as supporting a case of apparent bias.[133]As it is, it seems to me that the appeal should be allowed and the case remitted to the county court for a new trial. There are three principal grounds for this, which I will summarise, on the basis of what I have said already on each point.[134]First, the recorder misdirected herself as to the significance of the 1915 Deed and its plan. She disregarded it for a number of reasons. One was that it did not create the boundary. That is to be taken into account but does not render it irrelevant. Another was the general boundaries rule; this is entirely irrelevant. A third was the uncertainty as to where the 125 feet measurement was taken at its northern end, because of evidence about the state of the road. I do not understand this, since the plan shows that it was taken from a northern boundary feature of Sunnybank – almost certainly a hedge – and there seems to be no reason to suppose that this was in a different position from that of the present boundary feature. If the plan is to be taken into account, along with other old plans, as it should be, it seems to me that a number of relevant inferences could be drawn from it which would need to be balanced with other relevant factors in coming to a conclusion as to what the position had been on the ground at relevant times in the past. A proper decision as to the boundary needs to be informed by a consideration of all these factors.[135]Secondly, she did not address properly the issues relevant to the hedge and ditch presumption. Having rejected the story that it was dug by Mr Aubrey Smith, she did not go on to consider the probabilities otherwise, in particular the significance of the fact that, even on Mr Steward’s most extreme evidence on the point, the ditch never extended along the whole boundary. She needed to examine that question, and could not move straight from a rejection of the one story to an acceptance that the presumption did apply. As I have explained, there are several oddities about applying the presumption in a case such as the present, where the ditch does not extend for the full length of the hedge and the relevant boundary. These might well be taken to indicate that the ditch was dug by the owner on the northern side of the hedge, for his own convenience, rather than that it was dug by the owner on the south, to mark the boundary, who then planted the hedge on the soil thrown up from digging the ditch.[136]Both of these factors require a re-evaluation of the evidence. It is not open to this court to decide what the correct answer is. Therefore there has to be a new trial.[137]The third point is that, whichever party was successful as regards the true line of the boundary on the evidence as it stood otherwise, the other party had a case based on adverse possession which had to be determined. The recorder overlooked this. That factor by itself would require a new trial, even if it were not otherwise necessary.[138]For those reasons, I would allow the appeal, set aside the recorder’s order and remit the case to the county court to be tried again.[139]We were told that attempts had been made to resolve the case without going to trial. I hope that it may not be too late, with the prospect of an even larger costs liability at stake, for the parties even now to come to an agreed resolution of the dispute. If the case has to proceed to a further trial, the parties should at the very least revisit their pleadings, prune them of matters now seen to be irrelevant or misleading, and ensure that the real case of each side is properly formulated in the pleading. Mr and Mrs Gallop would need to abandon their claim based on the supposed southern ditch, whereas Mr Steward would need to formulate a claim (assuming that he wishes to do so) which expressly claims that his boundary runs to the north of the drainage ditch. There may be other issues which can be eliminated from the pleadings. The parties should, if possible, at least agree the issues to be decided. One point, technical but correct, taken on behalf of Mr and Mrs Gallop, was that in these proceedings the only issues, whether as regards the true boundary or as regards trespass more generally, related to the land which they owned at the start of the proceedings. Since then they have acquired further land to the east. So far as I am aware, the issues that would arise in relation to the southern boundary of that land to the east would be the same as for the boundary which is already in dispute. It would therefore be desirable that, if there is to be an agreement, it should extend to the whole boundary, and if the matter does have to proceed to a new trial, that the proceedings should be treated as extending to the whole boundary. The trial should take place before a circuit judge, and there should be a pre-trial review, if possible before that judge, to review the case management and ensure that the case is in a proper condition to be tried.[140]I agree.[141]I also agree.