BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just Β£5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Piper & Anor v Wakeford & Anor [2008] EWCA Civ 1378 (17 December 2008) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2008/1378.html Cite as: [2008] EWCA Civ 1378 |
[New search] [Printable RTF version] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOUTHAMPTON COUNTY COURT
DISTRICT JUDGE TENNANT
Strand, London, WC2A 2LL |
||
B e f o r e :
LORD JUSTICE LLOYD
and
LORD JUSTICE RIMER
____________________
(1) HOWARD DAVID PIPER (2) LYNDA CAROLE PIPER |
Claimants Respondents |
|
- and - |
||
(1) JOHN WAKEFORD (2) CLARA GWENDOLINE WAKEFORD |
Defendants Appellants |
____________________
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Daniel Bromilow (instructed by Preston Redman) for the Respondents
Hearing date: 25 November 2008
____________________
Crown Copyright ©
Lord Justice Lloyd:
"All those two pieces or parcels of land situate at Curdridge in the County of Hants containing altogether One acre one rood and sixteen perches or thereabouts bounded on or towards the southeast by the road leading from Swanmore to Botley Station on or towards the northwest by a proposed new road there coloured brown on the plan endorsed on these presents and on or towards the southwest and northeast by other land of the vendor as the premises intended to be hereby conveyed are by way of identification but not of restriction or enlargement more particularly delineated in the said plan and thereon numbered 8 and 9 and edged with the colour pink together with the moiety of the said proposed road coloured brown on the said plan abutting on the said pieces of land hereby conveyed And together also with a right of way for the Purchaser his heirs and assigns and his and their tenants and servants and all other persons authorised by them from time to time and at all times hereafter in common with the vendor and all other persons entitled to use the said right of way to pass and repass with or without horses and other animals carts carriages and other vehicles over along and upon the whole of the road of a width of thirty feet or thereabouts between the points marked A and C and C and D on the said plan."
"All That piece or parcel of land situate in the parish of Curdridge in the County of Hants (forming part of number 237 on the Ordnance Survey Map) having a frontage of Eighty six feet or thereabouts to Lockhams Road and a depth on the northern boundary of One hundred and seventy feet or thereabouts Together with the semi-detached messuage dwellinghouse and premises erected thereon as the property hereby contracted to be sold is for the purpose of identification only and not by way of absolute accuracy delineated and coloured pink on the plan drawn hereon."
"The parties' intentions at the time when the conveyance was executed have to be interpreted in the light of the physical features at the date of execution of the conveyance. It is of course the fact and it causes a serious problem that features on the ground change significantly over the years. Extrinsic evidence may be admissible if it is probative of what the parties to the original deed intended but, as Mr Glen [Counsel for the Defendant, before the judge as before us] points out, the parties to any subsequent deed which may have a bearing on it or exert a controlling influence on the interpretation of an earlier deed, the parties must be the same. Present physical features, that is contemporaneous physical features, are relevant if they shed light on the physical features which were present when the deed was made or insofar as they have been replaced by those which can presently be seen. Sometimes evidence of acts of ownership are admissible in order to establish where the title to the boundary is."
"There is no evidence at all that it was intended that the lane was 30 feet wide. The evidence is, as described by Mr Maynard, that the lane was 16 feet 6 inches wide. The best evidence available is that pointed out by Mr Maynard in his reference to an iron fence, an old fence in place before 1926 and probably intended to replace an earlier demarcation of the boundary."
" in the construction of the parcels clause of a conveyance and the ascertainment of a boundary the court is under strong pressure to produce a decisive result. The prime function of a conveyance is to convey. As to any particular parcel of land, either the conveyance conveys it, or it does not; the boundary between what is conveyed and what is not conveyed must therefore be proclaimed. The court cannot simply say that the boundaries are uncertain, and leave the plot conveyed fuzzy at the edges, as it were. Yet modern conveyances are all too often indefinite or contradictory in their parcels. In such circumstances, to reject any evidence afforded by what the common vendor has done in subsequent conveyances seems to me to require justification by some convincing ground of judicial policy; and I have heard none." (p 915)
"It was said, as long ago as 1969, by no less an authority than Megarry J in Neilson v Poole, that the then modern tendency was towards admitting evidence in boundary disputes and assessing the weight of that evidence rather than excluding it. That tendency has, in my experience, not diminished in the intervening years."
"36. The conclusion I would be inclined to draw from this review is that Watcham remains good law within the narrow limits of what it decided. In the context of a conveyance of land, where the information contained in the conveyance is unclear or ambiguous, it is permissible to have regard to extraneous evidence, including evidence of subsequent conduct, subject always to that evidence being of probative value in determining what the parties intended.
37. The qualification is crucial. When one speaks of "probative value" it is important to be clear what needs to be proved. In this case the issue concerns the line of a boundary which was fixed not later than 1947. Evidence of physical features which were in existence in the 1970s is of no relevance to that unless there is some reason to think that they were in existence in 1947, or they are replacements of, or otherwise related, to physical features which were in existence in 1947. Similarly, evidence of Mr Attridge Senior's understanding of the position of the boundary, or actions by him apparently relating to that boundary, is of limited probative value, even if admissible. Such evidence begs the questions whether his understanding of the boundary was well-founded, and if so how strict he was in observing it, particularly having regard to the disused state of the disputed land during that period.
38. I would add that in principle reference to the intentions of the parties means the parties to the original conveyance. Thus in Watcham the user relied on by the Privy Council was that of the Watcham family, who were the beneficiaries of the original certificate. In none of the cases reviewed above was account taken of the conduct of subsequent owners. Megarry J might possibly have been willing to go further. Where the evidence of the intentions of the original parties is unclear, long and unchallenged usage may, as he said, be
" good reason for tending to construe the (original) conveyance as having done what the parties appear to have treated it as having done "
I do not read that as necessarily confined to long usage by the original parties. We need not decide whether that is a permissible extension of the Watcham principle. It would only apply if there were evidence of a long period of acceptance of a specific boundary by a succession of parties on both sides of the boundary. That is not this case. The unilateral actions of the owner of one side (in this case Mr Attridge) could not be relied on as binding on the owner of the other."
Ali v Lane was followed in Haycocks v Neville [2007] EWCA Civ 28 and in Bradford v Keith James [2008] EWCA Civ 837.
Lord Justice Rimer
Lord Justice Ward