ACCO Properties Ltd v Severn & Anor [2011] EWHC 1362 (Ch)

Case No OBM30307[2011] EWHC 1362 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Venue BIRMINGHAM DISTRICT REGISTRY
The Priory Courts
Bull Street
Venue Birmingham
B4 6DS
28, 29, 30, 31 March and 1 April 2011
B e f o r e:
HIS HONOUR JUDGE SIMON BARKER QC
Between
ACCO PROPERTIES LIMITEDClaimant(1) MR MARK SEVERNDefendants(2) MRS LISA SEVERNDefendant
Transcript prepared from the official record byCater Walsh Transcription Limited1 st Floor Paddington House, New Road, Kidderminster DY10 1ALTel: 01562 60921/510118; fax: 01562 743235info@caterwalsh.co.uk
MR MAGUIRE counsel, instructed by Vicarage Court solicitors, appeared for ClaimantMR HANSEN counsel, instructed by Harris Cooper Brownings solicitors, appeared for Defendants on 28 – 31 March 2011MISS WALTON solicitor, of Harris Cooper Brownings, appeared for Defendants on 1 April 2011
J U D G M E N TDate 2011-04-01

HH JUDGE SIMON BARKER QC :

[1]This action concerns part of the boundary to the northeast side of 159 Marshall Lake Road, Shirley, West Midlands, B90 4RB (“159”). 159 is owned by Mr and Mrs Severn, who are the defendants. It was purchased by them in February 2008 and is their family home.[2]The property to the north of the disputed boundary is a driveway (“the driveway”), having its own registered title, which leads to what is now a plot and was previously a bungalow and, before that, a nursery and, before that, a field; the plot is now known as 159A Marshall Lake Road (“159A”).[3]The driveway and 159A are now in the ownership of Acco Properties Limited (“Acco”). Acco acquired 159A from a Mr and Mrs Mills in July 2009, and the driveway from a Mr Parker on 18th December 2009.[4]Acco is a British Virgin Islands company. Factual evidence was given for Acco by Mr Darren Aston, who describes himself as the property agent for Acco in the United Kingdom. He also said in his witness statement that he had written authority from Acco to represent that company in these proceedings. Upon being asked by the defendants’ counsel, Mr Hansen, to explain and make good that statement, Mr Aston produced three documents which are by no means entirely consistent with that statement.[5]What they demonstrate is that :(1) Woodman Investments Limited, a UK company of which Mr Aston says he is the sole director, has a contract with Acco to source properties in the UK, particularly in the West Midlands;(2) Mr Aston was authorised to represent Acco in this action for its initial injunction application; and(3) on 29th March 2011 - that is after Mr Aston had given his evidence - Mr Aston obtained written confirmation from Acco of his authority to represent that company in these proceedings.[6]It is clear from Mr Aston’s evidence that his agency is just that, in the sense that all Acco’s decisions are made by, and instructions are given by, someone else. That person was said by Mr Aston to be his stepfather, a Mr Raymond Ellis who, he says, is based in Jersey and who has visited the property here, to quote Mr Aston, “a couple of times”.[7]Thus, instructions to Elliot and Co, Acco’s former solicitors, were said by Mr Aston to have been given by Mr Ellis directly and not by or through Mr Aston. Elliot and Co are said to have reported to Mr Ellis in Jersey. Why this is relevant is as an explanation as to why Mr Aston could only speak to his own personal conduct at the site, and to his personal dealings with the defendants and, insofar as is relevant, with Acco’s neighbours on the other side - that is number 161 - who are a Mr Raven and a Miss Young, with whom Acco is also in dispute. In short, Mr Aston is a nominal representative with no authority to bind Acco in any way.[8]Returning to 159, the full length of the boundary along the northern face of 159 is some 60 yards, and the disputed length of the boundary is approximately 20 yards running from the front of 159 where the front garden meets the public highway, Marshall Lake Road, through to a point just past the rear of the house at 159 where a garage or shed used to stand in the back garden.[9]The width of the boundary in issue is, at its widest point, some 19 inches (49cm). This strip of land is important because 159 has been extended sideways and had been extended before the defendants purchased the property. The disputed strip has been cleared of trees and bushes and hedges by the defendants and fenced off for reasons including, but not limited to, the provision of access along the northern flank of their home.[10]In order to achieve this, a dog-leg joint has been created in the fence. The explanation for this given by the defendants is that the fence at the front section of their property (approximately 20 yards long) is just within their boundary, but the fence at the rear (40 or so yards to the rear of the house at 159) is well within their boundary.

PRINCIPLES

[11]Before turning to the facts and expert opinion evidence, I should briefly remind myself of the principles relevant to determination of boundary disputes, at least insofar as they are potentially applicable to this case: 1 Where, as in this case, the property in question is registered land, the file plans show only general boundaries and not the exact line of the boundaries unless the property is said to be “more particularly described in the plan.” 2 Similarly, Ordnance Survey plans, if not forming part of the registered title as filed plans, are no more than a general guide to a boundary feature, and they should not be scaled up to delineate an exact boundary. This is because the lines marking the boundaries become so thick on being scaled up as to render them useless for detailed definition. 3 In order to determine the exact line of a boundary, the starting point is the language of the conveyance aided, where the verbal description does not suffice, by the representation of the boundaries on any plan, or guided by the plan if that is intended to be definitive. 4 If that does not bring clarity, or the clarity necessary to define a boundary, recourse may then be had to extrinsic evidence - such as topographical features on the land that existed, or maybe supposed to have existed, when the dividing conveyance was executed. 5 Admissible extrinsic evidence may also include evidence of subsequent conduct where of probative value in showing what the original parties intended. 6 Evidence of later features - that is, later than the earliest dividing conveyance - may or may not be of relevance. The probative significance of such evidence depends upon the extent to which, if at all, the dividing conveyance, or evidence of its terms, exists. 7 Where a boundary is in dispute, it is important to bring certainty to the determination by proclaiming the boundary and not leaving the plot “fuzzy at the edges” (Neilson v Poole (1969) 20 P&CR 909, Megarry J). 8 Even where a boundary line may be determined by reference to a conveyance, other evidence may be admitted and probative in establishing a different boundary obtained by adverse possession, showing enclosure of the land in denial of the title of the true owner. As the phrase implies, title is established by intentionally taking exclusive possession of land without the consent of, and adverse to the interests of, the true owner, and maintaining such possession continuously for the limitation period. 9 As to informal boundary agreements, the statutory requirement that contracts for the sale or other disposition of land be in writing does not apply. That is because the purpose of such agreements is to demarcate an unclear boundary referred to in title documents and not to transfer an interest in land. 10 Such agreements are usually oral and the result of neighbours meeting to avoid or resolve a potential or actual dispute. However, there is scope for a boundary agreement to be implied or inferred - that is, to be the logical conclusion to be drawn from primary facts. 11 When bearing these principles in mind as the platform on which to place and examine the facts, a judge should have regard to three further important yardsticks or rules of thumb. These are:(1) when considering any acquisition of property, it is vital to consider what a reasonable layman would think he was buying;(2) every case turns on its own facts; and(3) the task of the court is to assess all available and admissible material in arriving at its answer, and then to achieve the correct answer.[12]Keeping these principles in mind, I now turn to the background to and the facts of this case, and to my decision.

BACKGROUND AND FACTS

[13]There is no evidence as to the circumstances in which what is now 159 and what is now 159A (including the driveway) passed into separate ownership.[14]It appears from the 1904 Ordnance Survey County Series map that at that time Marshall Lake Road was known as Cranwell Road. In 1904, the land on which 159 now stands was part - the northeast corner - of a field numbered 2546. The land on which 159A and the driveway stand was part of an adjacent field - number 2547. Both fields were delineated by boundary features, one of which was frontage onto Cranwell Road, two of field 2546’s boundary features were not straight. The boundary feature between fields 2546 and 2547, and therefore between what is now 159 and 159A, was shown as, or as approximating to, a straight line. That boundary feature appeared to meet Cranwell Road at right-angles, i.e. as a perpendicular line. Some development had already taken place along that stretch of Cranwell Road, including a terrace of dwellings opposite what is now 159 and 159A.[15]Other features such as tracks and pathways, or possibly verges, alongside public highways were marked on the 1904 map as, for example, around the area described or known as Featherstones’ Grave Wood. There were no such features - that is, no verges or other boundary features - marked in respect of or around the fields 2546 and 2547.[16]In 1933, a Mr Donald Rogers took a 99-year lease of part of field 2546. This plot comprised the frontage to Cranwell Road, by then known, as it now is, as Marshall Lake Road, for a distance of 81 yards, which was the entire width of field 2546, and to a depth of 60 yards. In area terms, this was noticeably less than half the area of field 2546.[17]On 3rd August 1934, Mr Rogers granted a 99-year lease, as an underlease, to his wife. From the underlease, it appears that Mr Rogers was a local builder and that, by the underlease, he assigned to his wife a plot, having a frontage to Marshall Lake Road of 8½ yards and a depth of 60 yards and therefore being an area of 510 yards, at the northeast corner of what had been field 2546. The underlease describes the plot as “…for the further and better description thereof, more particularly delineated and described in the plan annexed hereto, and thereon edged pink, together with the semi-detached messuage and dwellinghouse with outbuildings and appurtenances thereto belonging….”.[18]The boundary features are not described in the underlease. That semi-detached dwelling is 159 as originally constructed, and the underlease marks the first creation of a legal estate or interest comprising 159 as a separate parcel. The plan to the underlease shows the plot for 159 to have been rectangular and to have the dimensions already stated. It also shows that by August 1934 Mr Rogers had built four semi-detached dwellings, now known as 159, 157, 155, and 153 Marshall Lake Road. At that time, 159 was not built close to the boundary with what is now 159A, but an outbuilding to the rear, which was a garage or a large shed, was built close to that boundary.[19]This underlease and the plan came to light after the parties’ expert witnesses had prepared their original reports but before they met and prepared their joint report. Their observations in relation to the underlease are set out in their joint report at paragraph 1.6:
“This is a 1934 underlease for number 159 which shows dimensions for the frontage and northeast side. Given that the area shown on the plan is 510 square yards and is the exact product of the two dimensions, it must follow that the two long sides and the front and rear are parallel and of equal length. Mr Atkinson has plotted the dimensions on the agreed plan in purple. This line is on number 159’s side of the general line of the hedge shown by Mr Atkinson in red and Mr Bullimore’s estimate of the boundary by about 0.4 metres and 0.9 metres respectively at the front. Reasons for this considered by the experts are the limited accuracy of the Ordinance Survey mapping, the possibility that the hedge has been cut back so that its current centreline is different from the past centreline, the possibility of a hedge and ditch situation, although there is no firm evidence of a ditch other than the fact that the hedge sits on a slight bank, or the possibility that the position of the hedge has simply moved over the 76 years since 1934.”
[20]I accept that agreed statement by the experts. The experts have produced an agreed plan, which is at page 342 of the trial bundle, which I also accept and for which I am grateful. This shows the plot the subject of the conveyance to be to the south of, and therefore not impinging upon, the boundary contended for by Acco. It also shows the side extension added to number 159 as transgressing the northern boundary of the parcel assigned by the underlease but still not impinging upon the boundary contended for by Acco.[21]The agreed plan also shows the section of the low dwarf wall, which is a concrete-type brick with concrete coping stones, and is said by the defendants to have marked the northeast corner of their plot and the boundary with 159A where their plot meets Marshall Lake Road. That low wall has now been demolished. What the agreed plan shows is that that low wall was entirely outside the parcel the subject of the 1934 underlease, and entirely situated on what, as at 1934, was then field 2547 and is now Acco’s land.[22]Mr Hansen for the defendants submits that the 1934 underlease is of no evidential value because it is not a conveyance by which ownership on either side of the disputed boundary was divided. Mr Maguire, counsel for Acco, submits that that underlease is of assistance because it is the first separation of 159 into sole ownership. In my judgment, the underlease is of value as a starting point. What it makes clear is that I must consider the extrinsic evidence because the dividing line between 159 and 159A according to the underlease is a line for which neither party contends and which neither expert considers to be the correct boundary line. It also makes clear a length, width, and area for 159 at the date of construction.[23]The extrinsic evidence is a matter of considerable controversy. Matters relied on by one or other party are as follows: the hedgerow; the front boundary wall and pier - that is, the low wall; the raised bank, or a hedge and ditch; the electricity meter housing; the electricity cable poles and the telegraph poles; the chainlink fence; and subsequent user and conduct. I consider each of these in turn.[24]The hedgerow. From the site inspection on Monday, 28th March, it is clear to me that there are the remnants of a mature, well-established and thick - that is more than 4 foot wide in places - hedgerow comprising holly, hawthorn or May trees, other mature and growing trees, dead mature trees, saplings and young trees, creepers and new shoots including holly. There is no evidence as to the age of any of these features. There is ample photographic evidence to establish that at the time when the defendants purchased 159 this hedgerow was overgrown, even to the point of creepers growing up from the ground and stretching across from trees in the hedgerow, and covering almost the entirety of their home’s flank wall nearest to the boundary with 159A.[25]Until Mr Nigel Bullimore, the defendants’ expert surveying witness, gave oral evidence, the experts were agreed that by 1904 the boundary between the fields - 2546 and 2547, i.e. the boundary in dispute “…was probably (following usual practise) a hedge”. However, during cross-examination on 30th March, Mr Bullimore resiled from that agreed evidence and said that the boundary “may have been” a hedge. Mr Bullimore’s stated reason for so resiling was that he had had the opportunity to think further, and that he could not tell whether the hedge had an old root system or whether it was an old or a more recent hedge. Bearing in mind that Mr Bullimore inspected the property in December 2009, submitted his first report in May 2010, and met his fellow expert and agreed the joint report in November 2010, the explanation that he had had more time to reflect was a little puzzling.[26]It transpired from Mr Hansen’s closing submissions that what in fact had happened was that Mr Bullimore’s further thinking had been informed by talking with his clients and their legal advisers. This was not said by Mr Bullimore himself when giving evidence, but I accept Mr Hansen’s submission as reliable. In my judgment, this marks a regrettable failure on the part of Mr Bullimore to maintain his independence and to observe the overriding duty to the court on the part of an expert witness.[27]In my judgment, the boundary between the fields 2546 and 2547 probably was a hedge, and I so find. My reasons are that :(1) there was a boundary feature marked on the plan;(2) there is no evidence of walls or fences or other manmade structures in those or any other of the surrounding fields; and(3) a hedge would be the cheapest and most logical form of boundary feature.[28]The front boundary wall and pier. Mr Hansen submits that this is the most important boundary feature and that it is, or was before demolition, owned by and within the boundary of 159.[29]In fact, there is no evidence about when the wall was built and the experts do not conclusively comment on the likely date of its construction. Mr Bullimore, in his report, observes that the wall is the same or similar material to the pier at the front of 161, which is correct, and that 161 looks to have been built at around the same time as 159. However, in oral evidence Mr Bullimore speculated that the low wall was built in the 1950s or onwards, and later stated that he did not have any information about when it was built.[30]There is factual evidence to support the proposition that this type of low wall was not, by any means, unique to 159 and 161. However, there is no evidence at all about the private or public development of the frontage to the roads, including when the pavements were constructed.[31]The evidence of Mr Parker, Acco’s predecessor in title and the owner of the driveway fronting onto Marshall Lake Road at the time when the defendants purchased 159, was that he owned the concrete turret (pier) to the right and 159 owned that to the left, the implication being that the low wall was joint or, because it was nearer to the pier on 159A, on Mr Parker’s land. The defendants’ evidence - that of Mr and Mrs Severn - was that they owned the whole of the low wall. There is no evidence of anyone maintaining that wall.[32]Mr Atkinson, the claimant’s expert surveyor, gives as his view as follows:
“The establishment of the pillars and the side wall would in my opinion suggest that at the entrance to the driveway either the boundary is as defined by the pillars or for this section only where the pillars and the dwarf side wall occurs, adverse possession may have occurred through the passage of time”
. As Mr Atkinson observes, it is important not to confuse ownership of the wall with definition of the boundary.[33]Looking at the position of the low wall and what Mr Parker refers to as turrets, or the front, relative to the land assigned in 1934, and bearing in mind that the assignor gave precise measurements for a rectangular plot which was defined by reference to a detailed plan and was also the builder of that and other semidetached houses on plots to the south of 159, I cannot conclude, on the balance of probabilities, that the wall was built as part of the original construction of 159.[34]The raised bank or hedge and ditch. Mr Hansen submits that the raised bank is so pronounced and substantial that it cannot be the product of falling leaves, trees and hedge debris and upward movement caused by roots and growth at ground level or out of the ground. I agree.[35]Mr Hansen submits that the only logical explanation is that there was a ditch and that it was on the claimant’s side - on Acco’s side - of the hedgerow. I disagree. That is not because I think that there was a ditch on the other side of the hedgerow or on both sides of the hedgerow.[36]I have looked again at the photographic evidence and the Ordnance Survey plans for the registered titles to 159, 159A and the driveway, and I have also looked at the Ordnance Survey plan annexed to Mr Bullimore’s report. There seem to be three successive Ordnance Survey plans from 1954 onwards. That which I take to be the earliest (because Cranmore Nurseries is shown in its least developed state, i.e. there is only one building which is hatched as the nursery) also shows an access way or road leading to the nursery. The later Ordnance Survey plans and the agreed plan show that the bank or verge runs along the length of the driveway but not the full length of the boundary between 159 and 159A. 3 7 In my judgment, the probable explanation for the raised bank or verge is that, when first levelling the earth before laying the foundations for, and metalling or tarmacking the original road surface to the nursery, the excavated earth was thrown to the side creating a raised bank. This would confirm that the bank was treated as, and suggests that in fact it was, within the boundaries of the driveway and 159A.[38]Electricity meter housing. It is (now) common ground that the electricity meter housing, which is a brick structure with a substantial concrete roof (and once, but no longer, wooden doors), was constructed in about 1956 in connection with the planning permission to build the bungalow that became 159A.[39]The probability is that the utility body responsible for supplying electricity to 159A built that housing and that, in so doing, it will have taken some care to ensure that it was sited on 159A’s land.[40]The side of the electricity meter housing nearest to Marshall Lake Road has been damaged. The only explanation in evidence is that it was struck by a delivery van which caused the side wall nearest to Marshall Lake Road to move, the whole housing to skew, and the concrete roof to crack at the Marshall Lake Road end. On inspection during the site visit - and this is also agreed by the parties’ counsel from their inspection –(1) the rear wall to the meter housing (ie that which is nearest to the boundary of 159) has not moved but(2) the concrete roof has moved, or been moved, forwards (away from the boundary with 159) not less than the width of one course of ordinary red bricks. This was clear from observing the underside of the roof. This is also consistent with the photographs of the meter housing in the trial bundle, there being some old photographs before the defendants’ fencing at the front was erected and some photographs following the erection of that fencing.[41]Neither the defendants nor the proprietor of the fencing business engaged by the defendants were on site at 159 when this section of the fence was erected. However, the new section of fencing erected along the disputed boundary line is so hard up against the housing that a section of fencing had to be cut away and erected around the outline of the housing, and the roof has been moved forwards. The inescapable inference is that the meter housing roof was moved some 4 to 6 inches forwards so as to accommodate the new fencing while it was being erected.[42]Mr Hansen submits that the roof of the housing may well have overhung the boundary with 159, which would be the case if Mr Bullimore’s line of the boundary is accepted. However, I do not accept that submission - that is without making a finding in relation to Mr Bullimore’s boundary line. My reason for not accepting Mr Hansen’s submission is that the meter housing has been in place for more than 50 years. It is situated very near to Marshall Lake Road and in plain view of anyone walking past, including the owners, from time to time, of number 159. There is no suggestion in the evidence of any issue ever having been taken about the siting of this housing. Therefore, I conclude that it was sited entirely within the boundary of what is now 159A and the driveway.[43]It follows from this that this section of the boundary is at least 4 inches, and possibly 6 inches or so, towards number 159, and that the section of the new fence erected by the defendants is technically on or over the claimant’s land by that amount.[44]Electricity cable poles and telegraph poles. There are electricity cable poles along the disputed boundary line, and telegraph poles along the line of the boundary with 161. It is common ground that the telegraph poles are situated hard up against the boundary with 161. The practical reason for that is that the verge to the side of the driveway nearest to 161 is very narrow and the aim would have been to site the poles so as not to obstruct the driveway but, at the same time, to be on the property or along the boundary of the property to be serviced (159A).[45]Mr Raven, the present owner of 161, gave evidence and explained that he is a civil engineer with utility company experience, and that the boundary lines were chosen to avoid paying rent to a neighbouring landowner.[46]The electricity supply was only installed to service one property, 159A. The verge, or bank, was not narrow and there would have been no reason to site the poles hard up against the hedgerow and trees. Moreover, if they were sited hard up against the boundary line, the roof of the housing would have overhung 159’s boundary were a straight line to be taken along the line of the electricity poles to Marshall Lake Road. I think the utility engineers would not have taken that course or risked installing the electricity housing unit over the boundary with 159.[47]Although in his written closing submissions Mr Hansen observes that we do not know when these poles were erected, in my view the only sensible conclusion is that the electricity poles were erected in or about 1956 in connection with the construction of the bungalow at 159A.[48]The chainlink fence. There is cogent evidence that a chainlink fence was erected as the first form of boundary marker when the plot leased to Mr Rogers - that is, the front section of field 2546 - was developed by him. There is also cogent evidence that the angle iron near the front of 159/159A and the remnants of fencing along that boundary were, as Mr Hansen put it, “house style”.[49]However, if original to the building of 159 in 1934, the fencing could not have been (as it now is) attached to the electricity poles, which were not erected until some two-plus decades later.[50]Moreover, the angle iron near to Marshall Lake Road, now cut down to a stump, is some distance to the north of and is not in a straight line from or with the low retaining wall. Further, a straight line taken at right angles to Marshall Lake Road from that stump would dissect, not pass behind, the electricity meter housing. So, in my judgment, it is improbable that such a fence was in place in 1956 or, therefore, before that time.[51]Moreover, there would have been no need for the builder, Mr Rogers, to erect such a fence to the north of the hedgerow and some way to the north of the boundary line of the plot he had assigned to his wife after building number 159, which was the northernmost point of the land leased to him in 1933.[52]Subsequent user and conduct. Mr Hansen relies upon two pieces of evidence which he submits are important:(1) Mr Parker’s staking of the boundary, and(2) the felling of trees by the defendants, agreed to by Mr Parker by reference to Mr Parker’s view of the boundary line. Mr Maguire submits that Mr Parker was a reliable witness. In my judgment, the points raised by Mr Hansen are cogent evidence and assist in establishing where the boundary line is.[53]When blocking off the gate inserted by Mr Severn in the undisputed section of the fence - that is, what is described as the old fence although it is relatively new - Mr Parker placed three stakes and barbed wire some distance to the north of that fence. The only measurement of that distance is one of 2 feet 6 inches. This is in evidence in the note at page 101 of the trial bundle said by Mr Parker, in his oral evidence, to be a forgery and to have been challenged by him as soon as it was disclosed to him. I observe that it is striking that there is no evidence of a contemporaneous acknowledgment of this note by the defendants.[54]Another factor not to be disregarded when credibility or propensity to do something rash without fully thinking through the consequences is in issue is the fact that the first defendant, Mr Severn, had a tattoo on his arm of the SAS symbol and motto and is alleged to have claimed that he served in the SAS. In fact, although he served briefly in the army, he was never attached to the SAS in any capacity. In his oral evidence, Mr Severn volunteered that he acquired this tattoo in a moment when his judgment was impaired and regrets having done so.[55]I do not accept that the note at page 101 was in fact prepared by, or authorised by, Mr Parker. The relevant evidence leading me to that conclusion is(1) Mr Parker’s evidence was that the trees cut down by the defendants were not on his land but were on their land;(2) however, the note indicates that the trees were said by Mr Parker to be on his land, that appears in the sixth line of the typed note;(3) Mr Severn’s evidence in cross-examination was that he pointed out two trees and Mr Parker said “They are on your land. … Take the trees down at your own expense”;(4) but in his written evidence (that is in his first statement at paragraph 1.7), Mr Severn said “If Mr Parker had stated a claim to the trees, I would have insisted that he paid for them to be felled”;(5) by the note, there was such a statement but there is no evidence of any request by Mr Severn to Mr Parker to pay for, or contribute to the cost of, the felling of those trees, nor was there an acknowledgment to Mr Parker;(6) the cutting down of the trees was to relieve an obstruction to the defendants’ access. That would hardly be consideration or compensation for a right of access (as it is described in the sentence “It was agreed that the two trees would be cut down but at your cost …” - that is, Mr Severn’s cost - “…to compensate for side access which I agreed to and will pass the information over to the Land Registry”); and(7) there is no evidence of any follow-up with the Land Registry.[56]On the choices available to me, I have to conclude that responsibility for the note at page 101 rests with one or other or both of the defendants.[57]Boundary Line. Returning to the substantive point, what the evidence, disregarding the note, establishes is that it was common ground that the trees that were cut down were on the defendants’ land. Thus, in my judgment, the line of the true boundary should run to the north of the two felled trees but to the south of the roof of the electricity meter housing in its true position. Taking an average of 4 to 6 inches, I find that point to be 5 inches to the south of the present position of the meter housing roof, and therefore to the south of the electricity poles. It is then a matter of getting a line of best fit from Marshall Lake Road, on the basis that the line is 90 degrees, or as close as possible to 90 degrees, to that road.[58]Reasonable layman. Before leaving this issue, I should ask myself what the reasonable layman intending to purchase 159 in 2008 would have thought he or she was buying. This is by way of check. This would involve having regard to the facts reasonably available to, and ascertainable by, such a person, and will fall some way short of the facts ascertainable in 2011 by a judge at the conclusion of a four day trial, especially a trial as thoroughly prepared and as well argued as this has been. It may be assumed that the reasonable layman would have had the assistance of a legally qualified conveyancer.[59]In those circumstances, a reasonable layman would view the site, ask where the vendor thought the boundaries lay, and scrutinise the registered title or, if it is available, the last conveyance (or evidence of the same), for indicators as to the boundary line. Bearing in mind the overgrown state of the hedgerow, the boundary line would be an obvious source of enquiry.[60]The meter housing would be assumed to be on 159A’s side of the boundary and, given that the low wall is not a regular L-shape but has a defined T-shape to it, it could not safely be concluded that the low wall was entirely within 159’s boundary or, indeed, within 159A’s boundary.[61]The reasonable layman would also notice the raised bank and hedge on the ground, and observe that a representation of a boundary feature in that position was shown as being within the driveway’s boundary on the Ordnance Survey plans as attached to the registered title.[62]No conclusion could safely be drawn from the remnants of the chainlink fence.[63]If the precise boundary line was material to the prospective purchaser, further enquiry in much more detail would have to be made. That, of course, is what has gone on in this trial.[64]Adverse possession. Mr Hansen rightly acknowledges that this issue is primarily contingent on the court’s findings as to the chainlink fence. Whilst I accept that there is evidence of a chainlink fence, the evidence is by no means all one way. I also have not found, and do not find, on the balance of probabilities that the owners of 159 have been in possession of the land on which the low wall stands, other than the southerly section of the wall fronting onto Marshall Lake Road, in respect of which any claim by 159A would require cogent reasoning, and none has been advanced.[65]Boundary agreement. As to the first aspect as submitted by Mr Hansen - that is, an express oral agreement evidenced by the note - I have rejected the note as a forgery and therefore have to reject this contention as advanced by Mr Hansen. However, the fact that I have rejected the note is not, in my judgment, reason in itself for dismissing the possibility of an informal boundary agreement to demarcate the boundary line. The fact that a foolish or unlawful act has been committed or a lie told does not preclude consideration of whether there was a freestanding oral agreement on which the ex turpi causa maxim would not bite.[66]On this issue, I am satisfied, by reference to the oral evidence of Mr Parker, Mr Severn and Mrs Severn, that when they met in March 2008 there was a sufficient discussion of the boundary for the defendants to understand that when cutting down the two trees, and particularly that shown in the photograph at page 295 of the trial bundle, they would be cutting down trees on their own land, and thus within their boundary. From that, their boundary could be plotted as a straight line to the north of the tree trunk, particularly that shown at the photograph on page 295, to Marshall Lake Road, avoiding the roof to the electric meter housing notionally repositioned in its correct position - that is, some 5 inches to the south of its current position - and arriving at Marshall Lake Road, as close as possible, to right angles. That boundary line would, in my judgment, be the result of an informal boundary agreement to demarcate the boundary and therefore take precedence over (in so far as different from) the boundary line that I had found by reference to the extrinsic evidence.[67]By way of inference, and this is Mr Hansen’s second point in relation to informal boundary agreements, that line could then be extended westwards as a straight line, providing always that it was to the south of the telegraph poles erected on the bank or verge.

DECISION

[68]What does this produce? It produces a boundary defined by an informal boundary agreement as identified above. Looking at the agreed plan, the boundary is a line north of Mr Atkinson’s red line and south of Mr Bullimore’s blue line on the agreed plan. The gap between the red line and the blue line at its widest is said to be 49 centimetres or, in old money, 19 inches. I would add, with Mr Hansen’s reference to Stephenson v Johnson in mind, that I do not have to strive very hard to find such an informal boundary agreement.[69]Remedies. What does this mean? Put in terms of remedies, should Acco be granted a mandatory injunction requiring the defendants to pull down their new fence and resite it? Mr Hansen submitted that the proposition that an Englishman’s castle is his home no longer holds true, the implication being, of course, that it no longer is. I am confident that neither of his clients, the defendants, would agree with that proposition and, for that matter, neither do I. A strip of land 12 inches or 19 inches wide may be of very little monetary value, except where it is a ransom strip or possibly part of a narrow passageway, but it is still land and the true owner may expect the courts to protect his property rights.[70]Mr Maguire submits that the defendants have sought to colonise Acco’s land; but in my judgment that is not the real motivation of Mr and Mrs Severn. They purchased a house with undergrowth, trees and creepers grossly overhanging land that was indisputably theirs, and with creepers growing up, across and down the external walls of their garage and their living room. This caused damp, which is apparent from photographic evidence in the trial bundle on which the defendants were not challenged. In those circumstances, it is completely unremarkable that concerned and proud home owners, which I take the defendants to be, would seek to cut back and remove a danger or hazard which was providing neither aesthetic nor commercial benefit to their neighbour but was escaping and causing a nuisance and damage. It is also unremarkable, in my judgment, that cautious and proud home owners would seek to protect their home by erecting, as a first line of defence to such invasion, a fence.[71]Contrary to Mr Hansen’s submission, I do not, as I have said, accept that the days are gone when a party can litigate over a tiny strip of land, although I would certainly agree that it is usually economic madness so to do, but a person remains entitled in law to protect and preserve that which is his or hers.[72]The real point here is that successive owners of 159A and the driveway have so neglected the hedgerow growing on their land that it has crossed over onto their neighbours’ land and property and has caused or threatened damage.[73]Having regard to the need to exercise the discretion to grant an injunction judicially, that is, in essence, in accordance with principle and good reason, which could be restated in a list of many factors and distilled down to these two points, I cannot properly grant the injunction sought, and I therefore refuse so to do.[74]The upshot is that, applying the rule in Shelfer’s case, I should consider the award of some modest financial measure to compensate the claimant for being deprived of a very narrow strip and modest area of land of no apparent commercial value, with the result that the new fence stays in the place where it is presently sited.[75]Further findings. I make the following further findings based on my reading of the trial papers, listening to oral evidence and observation of the witness and parties : Reliability of Mr Aston. Mr Aston has been criticised as unreliable. In my judgment, Mr Aston’s difficulty has not been that he intended to mislead but that he is totally reliant on others for information; so that, for example when, on 14 December 2009, he asserted that Acco owned the driveway the problem was that his statement was based on instructions from his stepfather or his mother, who appears from correspondence also to have been involved in the management of Acco and to have visited the site. To the extent that Mr Aston mis-stated a fact, it is likely to be because he was misinformed.[76]Aggressive behaviour. I find that it is probable that both Mr Aston and Mr Severn would be and were quick to flair up when discussing the boundary and related issues. I make no finding that one or other is more culpable than the other.[77]Mr Parker’s siting of the stakes and the barbed wire. This is more likely to have happened in April 2009 than in March or April 2008, or the original date given by Mrs Severn, July 2008.[78]The resiting of gateposts. The photographic evidence produced yesterday, measured against the agreed plan, entirely supports the defendants’ case that these posts were originally placed much further up the driveway, and Mr Aston’s evidence to the contrary is wrong.[79]I now invite some brief submissions on the monetary value of compensation. (Compensation of £1,000 awarded)

Cited in 4 later judgments