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||Neutral Citation Number:  EWCA Civ 3
||Case No: B2/2011/0663
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE DONCASTER COUNTY COURT
HIS HONOUR JUDGE MOORE
||Royal Courts of Justice
Strand, London, WC2A 2LL
||18 January 2012
B e f o r e :
LORD JUSTICE MAURICE KAY
VICE-PRESIDENT OF THE COURT OF APPEAL CIVIL DIVISION
LORD JUSTICE LLOYD
LORD JUSTICE SULLIVAN
|| GARY TAYLOR
||- and -
||(1) TERENCE LAMBERT
(2) MICHELLE LAMBERT
Duncan Macpherson (instructed under the Bar Pro Bono Scheme) for the Appellant
Soofi Din (instructed by CA Law) for the Respondents
Hearing date: 20 December 2011
HTML VERSION OF JUDGMENT
Crown Copyright ©
Lord Justice Lloyd:
- This is an appeal from an order of His Honour Judge Moore in the Doncaster County Court (sitting at Sheffield) made on 4 February 2011, by which he decided in favour of the Defendants, Mr and Mrs Lambert, a dispute as to the boundary between the properties where the respective parties live, in the High Street, Barnby Dun, Doncaster. The Claimant, Mr Taylor, has permission to appeal, granted by Arden LJ, on one ground of appeal only, and has not sought to renew his application for permission on other grounds. He has applied for permission to adduce in evidence two aerial photographs discovered since the trial. Mr and Mrs Lambert have served a Respondent's Notice, to have the judge's order upheld on other grounds if necessary.
- At the trial, and for much of the time pending the appeal, Mr Taylor was without legal representation. He had some professional help in preparing his grounds of appeal and skeleton argument. Very shortly before the hearing of the appeal he was able to obtain the assistance of Mr Duncan Macpherson of Counsel under the Bar Pro Bono Scheme. The court is grateful to Mr Macpherson, as I am sure Mr Taylor is, both for his acting in this way and for the quality of his argument. Mr and Mrs Lambert were represented by their solicitor at the trial, and by Mr Soofi Din on the appeal, to whom the court is also grateful for his succinct assistance on the relevant points.
- The parties' properties are now known as The Moorings (for Mr Taylor) and Bridge Stores (for Mr and Mrs Lambert). They have been known by different names at different times in the past, but I will use the current names for reference. Until 1974 they were in common ownership, forming a parcel of land created by a conveyance in 1926. Bridge Stores is to the north of The Moorings. The High Street runs along the western boundary of both properties, and further to the west is the River Dun, with a bridge across it just to the north of Mr and Mrs Lambert's property.
- The critical moment is 8 April 1974, the date of the conveyance by which The Moorings came into separate ownership. The puzzle at the heart of the case is that that conveyance contains a description of the property conveyed which is, on the one hand, fairly general in the words used and, on the other hand, rather precise as to the area of land conveyed, but that the area so measured is significantly smaller than the area if taken to the obvious boundary feature that, as the judge held, existed on the ground at the time. For Mr Taylor it is argued that the precise measurement of the area must prevail not only over the plan annexed, which was for identification purposes only, but also over the other parts of the verbal description and over the conclusion to be drawn from an inspection of the land at the time, and that the judge was wrong in law in not accepting that proposition.
The conveyancing history
- On 15 November 1926 Mrs Jane Wolstenholme conveyed to Mrs Beatrice Seaton property known as The Old Star, containing an area of 1,356 square yards, or thereabouts, as more particularly delineated on a plan annexed. The plan shows every sign of having been carefully drawn. The particular reason for care being taken was that the vendor retained other land to the east, so that this conveyance was of only part of what she then owned. The Old Star, which may once have been a public house but by then had only an off-licence, occupies the north-west corner of the site. At the back, on the eastern boundary, is an outbuilding which, by the 1970's and since, was used as garages. I will refer to it as such. On the western boundary, just south of the building, The Old Star, a gate is shown giving access to and from the High Street. Almost immediately to the south of that gate a wall is shown extending eastwards for a little distance; I will call this the short western wall. To the south of that wall features are marked which led the judge to infer that there may have been a pig-pen. To the east of the end of the short western wall is an opening and to the east of that there is another feature, irregular in shape, which may have been to do with the pig-pen. In turn, to the east of that feature, which forms the north-east corner of the pig-pen area, there is a small gap before you reach the western end of another short wall, which I will call the short eastern wall, running westward from a point a little to the north of the south-western corner of the garages. In the southern part of the site, the outline of the pig-pen is shown by a curved wall which runs south and then west from the irregular shaped feature which I have mentioned, and joins the western boundary of the site. Nothing else is shown in the southern part of the site. Access could be got to it either from the north, through the small gap mentioned, or at the southern end of the site where an area was coloured to show that over it a right of way was reserved to the vendor, to get access to the retained land to the east, which included some cottages shown on the plan.
- The aerial photographs which Mr Taylor sought permission to use for the purposes of the appeal were taken in May 1971 and May 1973. They show the lie of the land fairly clearly. At that time the layout of the land was much the same as is shown in the 1926 Deed Plan, save that what I have referred to as a pig-pen was not then being used as such, and some structures previously shown as existing within that area, to the south of the short western wall, no longer existed.
- By a conveyance dated 30 August 1972 Mrs Seaton conveyed the whole site to Mr and Mrs Green, identifying it by reference to the plan to the 1926 conveyance.
- The important conveyance is the next in the sequence, dated 8 April 1974. By this Mr and Mrs Green conveyed to Mr and Mrs Stockhill land defined as follows:
"All that messuage or dwellinghouse and saleshop with the outbuildings yard garden and conveniences thereto adjoining and belonging situate in High Street at Barnby Dun near Doncaster in the County of York known as Bridge Stores which said premises contain an area of 553.4 square yards or thereabouts and are for the purposes of identification only delineated on the plan annexed hereto and thereon coloured pink"
- The annexed plan has a date of 3 December 1973 and a caption: "Sale of land and buildings at High Street Barnby Dun Doncaster". It has a location plan said to be at a scale of 1:2500 and a block plan said to be at 1:500. Unlike the 1926 plan it is not the result of a survey, although the terms of the parcels clause show that someone had carried out a surveying exercise, to get to the measurement of 553.4 square yards. For what it is worth, it shows a boundary between the land sold and that retained which, from the eastern boundary, runs along the southern end of the garages and then in a straight line, slightly southwards, as far as the western boundary.
- Mr and Mrs Stockhill owned Bridge Stores until 1984. Their daughter Mrs Carlile gave evidence at the trial. She moved into Bridge Stores with her parents and the rest of the family in 1974 and lived there until she got married later that year. In January 1984 her parents sold the land to Mr and Mrs Polson. Mr Polson gave evidence as well. Mr and Mrs Polson owned Bridge Stores until 1996.
- In the meanwhile, Mr and Mrs Green, who had built The Moorings in or before 1974, lived there for the rest of their lives. Mr Taylor bought that property from Mrs Green's personal representatives in May 1996. He has lived there ever since.
- In December 1996 Mr and Mrs Polson sold Bridge Stores to Mr and Mrs Allen. They in turn sold to Mr and Mrs Lambert in September 2002.
- Title to Bridge Stores was first registered at HM Land Registry in 1984, and to The Moorings in 1996.
The position on the ground
- Judge Moore held that, at the time of the 1974 conveyance, there was already in place a boundary wall, about one metre high, which constituted the effective boundary between The Moorings and Bridge Stores. For Mr Taylor Mr Macpherson argued that the judge did not make such a finding, and that there was no evidential basis for such a finding, besides arguing that, even if there had been such a wall in place then, it was irrelevant. I am satisfied that the judge did make such a finding, and that there was ample evidence on which he could. I will first explain briefly the position on the evidence.
- Mr and Mrs Green applied for, and obtained, outline planning permission to build a house in the southern part of the property in 1972. Details were approved in 1973. Some documents relating to the planning process were in the appeal bundle, but they cast no light on the questions now relevant, either way. The house was built, and the northern part of the site was then offered for sale, and sold to Mr and Mrs Stockhill. Mr and Mrs Green moved into The Moorings, and Mr and Mrs Stockhill moved into Bridge Stores.
- The construction of The Moorings required the taking down of at least some of the old walls and structures shown on the 1926 plan and the aerial photographs of 1971 and 1973. At the very least, the wall which had constituted the southern boundary of the pig-pen must have been taken down. In fact, the evidence is that, by the time of the conveyance, the irregular-shaped structure and the short eastern wall certainly no longer existed. There was also evidence that the short western wall had been taken down, though some traces of it may have survived. I will refer briefly to the evidence which supports this, and which also deals with the new wall along the line contended for by Mr and Mrs Lambert. But it seems to me that it is not at all surprising that this should have happened. After all, Mr and Mrs Green were dividing up the land they owned and which, until the sale, they occupied. They created a new house for themselves, with its own garden and amenities, distinct and separate from that which they offered for sale and then sold to Mr and Mrs Stockhill. It would be at least a natural thing to do, in that situation, to define the extent of the curtilage of the new property by marking a boundary on the ground in some way, and normally by creating a new boundary feature of some kind.
- The evidence about the wall, which I will call the boundary wall, is of several different kinds. The most direct was that of Mrs Carlile, whom I have mentioned. We have her witness statement and the judge's comments about her evidence, though we do not have a transcript of her oral evidence. She said that she moved into Bridge Stores with her parents at the same time as they moved into the property. She produced several photographs, one of which she said had been taken early in 1974 just after they had moved in. This shows the northern side of The Moorings in the background, with Mr Stockhill and one of his sons in the foreground. Behind them there is a wall running, apparently, parallel to the side of The Moorings, across the whole width of the photograph. Her evidence was that there was already a wall in this position when they moved into Bridge Stores. She also produced some later photographs, one of which showed that there was a gate in the wall, to the east of The Moorings, big enough for someone to walk through it. She said that Mrs Green used to come through the gate, not least because she used to help out in the shop within Bridge Stores for some time after the sale. In his judgment at paragraph 29 the judge said that she had given evidence, which he accepted, that the wall went to the corner of the garages and down the side of them.
- There was also other evidence supporting the location and age of the wall. In particular, in 1984, at the time of the application for first registration of Bridge Stores, the Land Registry caused the land to be inspected in order to ascertain the correct line for the filed plan. They asked for information as to the age and nature of features along the line from the south western corner of the garages to the western wall, following the line of the plan on the 1974 conveyance. The answer was: "1.0m stone wall built 12 years ago". We know, from the aerial photographs, that it was not built in 1972, 12 years previously, and that it was not there in May 1973, but this supports the view that it was already in place in 1974.
- Mr Macpherson submitted that, although there was evidence from which the judge could find that the wall was in place during 1974, some time after the conveyance, he was not entitled to find that it existed at the time of the conveyance. He made the point that Mrs Carlile did not say when it was that they moved into Bridge Stores, that it might have been some time after the conveyance, and that the wall might have been put up during that time. I do not accept this contention. The probability is that Mr and Mrs Stockhill moved in either at once upon the completion of the purchase or very soon after the conveyance. If their moving in was delayed, there would have to have been some good reason for the delay, as to which there was no evidence. It was not Mr and Mrs Stockhill who had the wall built, so it must have been Mr and Mrs Green. Since they had it done, the overwhelming probability is that it was done before the sale, and in preparation for that so as to define the extent of the garden of The Moorings.
- For those reasons it seems to me that there was convincing evidence available to the judge from which he could conclude that the wall existed at the date of the conveyance, so that it was part of the physical features of the relevant area of land apparent on inspection, when Mr and Mrs Stockhill came to buy Bridge Stores.
- As to Mr Macpherson's submission that the judge did not make that finding, I need not refer to more than one passage in the judge's judgment, given extempore on the third day of the trial. In his paragraph 151 he said this:
"I am satisfied that the true boundary in fact and law between the properties conveyed between the parties in 1974, is shown approximately by the line in the plan with the conveyance that runs from the south west corner of Bridge Stores garages to the west wall of the property. In other words I find as a fact that the parties to the 1974 conveyance Mrs Green intended to sell and the purchasers intended to buy the area to the north of the boundary line at line B to C in the composite plan at page 90, supplementary bundle. She intended to sell that area, the buyers intended to buy it."
- In that passage he expressed his conclusion as to the law as well as the facts. I will revert to whether he was right as to the law, but on the facts it seems to me that what he said in that paragraph is only consistent with there being a marked boundary on the relevant line at the time of the transaction of sale and purchase. Otherwise he could not have spoken of "the true boundary in fact". Moreover, having already rejected as irrelevant the subjective intention of the parties at paragraph 19, he could not have spoken of an objectively ascertained intention of the parties by reference to this boundary line unless there had been something on the ground to mark that line at the time. All in all it seems to me that if he had held that the boundary wall was not in place at the time of the transaction, that finding might have been regarded as perverse. I therefore proceed on the basis that he did find that the boundary wall was there before the conveyance and, in practice, before the contract as well.
- The line of the boundary so defined was referred to in the proceedings by reference to points A, B and C. A is the south-eastern corner of the garages, on the eastern boundary, B is the south-western corner of the garages, and C is where the boundary wall meets the western wall of the two properties.
- The boundary lay along that line, in practice, from 1974 onwards and was not queried or disputed until the events which led to the present litigation, in 2008 or 2009. In or about 1984 the little gate which had existed in the boundary wall was blocked up, having by then ceased to be practically usable. Later a fence was put up on the northern side of the boundary wall. Mr Taylor planted laurel trees on the south side of the wall, which later became a laurel hedge. This can be seen clearly in an aerial photograph taken in 2007.
The relevant principles of law
- The correct interpretation of the parcels clause in a conveyance involves questions of fact and of construction. As with any other document, a conveyance must be read in the light of relevant surrounding circumstances. Mr Macpherson submitted that a stricter approach should apply to a conveyance than to other documents, because of the imperative need for certainty of title. What appears from the document should not be at risk of being subverted by reference to circumstances existing at the time of the transaction which may not endure and therefore may not be readily discoverable later by parties whose title depends on the conveyance. That is an understandable reason for caution, but it is inevitable that the document should be read and understood in the light of the situation as it is on the ground at the relevant time. The point of the conveyance, after all, is to transfer to the purchaser a legal estate or interest in relation to a given area of land. What the extent of that land is has to be determined by reference to the conveyance but it is at least difficult, and probably impossible, to imagine a conveyancing document which could define the physical extent of the relevant land without some cross-reference to at least one or more points to be identified by inspection of the site.
- The 1974 conveyance, like many in the days of unregistered conveyancing, used a verbal description, which in this case included a rather precise measurement of the area, and a plan. In Eastwood v Ashton  AC 900 the conveyance used four indications: the farm sold was said to be called by a given name, to contain 84 acres odd "or thereabouts", and to be in the occupation of two different tenants as to different parts, and it was more particularly described on the annexed plan. The plan prevailed, because only the land occupied by one of the tenants was known by the name stated, the acreage was approximate (and the area in dispute was only one twelfth of an acre), and the other tenant was no longer in occupation (having sublet), so that none of those three factors in the description was reliable. Earl Loreburn said at the outset of his speech, at page 906:
"We must look at the conveyance in the light of the circumstances which surrounded it in order to ascertain what was therein expressed as the intention of the parties."
- Lord Parker of Waddington said much the same at page 909, referring in terms to having resort to extrinsic evidence, but the extrinsic evidence in question was as to the state of things on the ground as regards description, acreage, and occupation.
- Lord Sumner discussed the use of several different methods of describing the extent of the land in question. In words prescient of the issue arising in the present case he said at page 916:
"If, however, several different species of description are adopted, risk of uncertainty at once arises, for if one is full, accurate, and adequate, any others are otiose if right, and misleading if wrong. Conveyancers, however, have to do the best they can with the facts supplied to them, and it is only now and again that confusion arises."
- Almost 85 years later the House of Lords again had to consider the scope of a parcels clause in Alan Wibberley Building Ltd v Insley  1 WLR 894. Lord Hoffmann referred at page 896 to the fact that plans, though often used, are usually said to be for identification only, so that (even if they were on a large enough scale and accurately drawn) they cannot be used except for general identification. He went on:
"It follows that if it becomes necessary to establish the exact boundary, the deeds will almost invariably have to be supplemented by such inferences as may be drawn from topographical features which existed, or may be supposed to have existed, when the conveyances were executed."
- Recently, in Pennock v Hodgson  EWCA Civ 873, Mummery LJ summarised the position (after reference to the two cases from which I have cited) in his paragraph 12 as follows:
"Looking at evidence of the actual and known physical condition of the relevant land at the date of the conveyance and having the attached plan in your hand on the spot when you do this are permitted as an exercise in construing the conveyance against the background of its surrounding circumstances. They include knowledge of the objective facts reasonably available to the parties at the relevant date. Although, in a sense, that approach takes the court outside the terms of the conveyance, it is part and parcel of the process of contextual construction. The rejection of extrinsic evidence which contradicts the clear terms of a conveyance is consistent with this approach: Partridge v. Lawrence  EWCA Civ 1121;  1 P. & C.R. 176 at 187; c.f. Beale v. Harvey  EWCA Civ 1883;  2 P. & C.R. 318 where the court related the conveyance plan to the features on the ground and concluded that, on the facts of that case, the dominant description of the boundary of the property conveyed was red edging in a single straight line on the plan; and Horn v. Phillips  EWCA Civ 1877 at paragraphs 9 to 13 where extrinsic evidence was not admissible to contradict the transfer with an annexed plan, which clearly showed the boundary as a straight line and even contained a precise measurement of distance. …"
- In Wigginton & Milner Ltd v Winster Engineering Ltd  1 W.L.R. 1462 at 1473-4 Buckley LJ said this about the possible relevance of a plan stated to be used for identification purposes only:
"When a court is required to decide what property passed under a particular conveyance, it must have regard to the conveyance as a whole, including any plan which forms part of it. It is from the conveyance as a whole that that intention must be ascertained. To the extent that the conveyance stipulates that one part of it shall prevail over another part of it in the event of there being any contradiction between them in the ascertainment of the parties' intention, the court must of course give effect to that stipulation. So if the conveyance stipulates that the plan shall not control the description of the parcels, the court must have due regard to that stipulation; but insofar as the plan does not conflict with the parcels I can see no reason why, because it is described as being 'for identification only', it should not be looked at to assist in understanding the description of the parcels. The process of identification is in fact the process of discovering what land was intended to pass under the conveyance, and that is the precise purpose which the plan is said to serve. Accordingly, so long as the plan does not come into conflict with anything which is explicit in the description of the parcels, the fact that it is said to be 'for the purposes of identification only' does not appear to me to exclude it from consideration in solving problems which are left undecided by what is explicit in the description of any parcel."
- As to the interpretation of a description which speaks of the land as being "known" by a given name, Peter Gibson LJ said this in Freeguard v Rogers  1 WLR 375:
"In my judgment, when a property, the subject matter of a conveyancing document, is described as "the property known as …" it is permissible, indeed inevitable, that recourse will be had to extrinsic evidence to identify the property so known. In Spall v Owen (1981) 44 P. & C.R. 36, in which there was a description of a property as "the property known as plot No. 1," I said, at page 43, that such a description cried aloud for evidence of the surrounding circumstances. That dictum was quoted by the Court of Appeal in [Targett v Ferguson (1996) 72 P&CR 106] with approval."
- In the Targett case, at page 114, Sir John Balcombe, giving the leading judgment, cited with approval this passage from a judgment of Butler-Sloss LJ, Toplis v Green (unreported 14 February 1992):
"In taking the objective approach [that is, in the construction of the conveyance and the plan], one looks at the language used in the contract, the content of the plan and in the context the facts relating to the locus in quo, if it is in issue as indeed it is in this appeal, including relevant photographs and the preliminary enquiries. The question, therefore, is: what would the reasonable layman think he was in fact buying?"
- The ground of appeal on which permission to appeal was given in the present case is that the judge illegitimately took account of extrinsic evidence in deciding that the boundary wall prevailed over the description on the words of the parcels clause, being inconsistent with the stated area, and wrongly subordinated the measurement to the plan. Undoubtedly it is the law that extrinsic evidence cannot be admitted to contradict a conveyance. It is also the law that a plan which is referred to as being for purposes of identification only does not prevail over the words of the parcels clause if there is a conflict between them. Horn v Phillips, mentioned by Mummery LJ in the passage quoted above, is a good example of not allowing in extrinsic evidence to create an ambiguity. Jacob LJ said this at paragraph 13, which fits well with Mr Macpherson's argument:
"I would add this. The court of course can admit, and must admit, extrinsic evidence if it finds ambiguity or meaninglessness or the like, but the court should not be astute to go out of its way to find ambiguity or uncertainty where there is none. These documents are intended to affect not only the parties to them, but subsequent purchasers and surrounding land owners. Prima facie they are to be relied upon unless there is something fairly obviously wrong with them. There is nothing fairly obviously wrong with this one. It tells the Horns what they are going to get, 61 metres, and that is what they got. It tells others what the Horns got."
The expert evidence
- Evidence was given at the trial both by factual witnesses (principally those I have mentioned – Mrs Carlile and Mr Polson - and Mr Taylor himself) and by experts: Mr Rowley and Mr Wilson. Mr Rowley was originally instructed as a single joint expert; Mr Wilson was instructed later by Mr Taylor. Mr Rowley generated a number of plans to compare the various deed plans with the position on the ground, having carried out a detailed measured survey. We have their reports but we also have a helpful schedule prepared after their joint meeting. Salient points from this are as follows.
i) The measurement of 553.4 square yards in the 1974 conveyance is unusual, and suggests that there must have been specific reason for it. The plan to the 1974 conveyance is not of good quality, not to scale and may have been derived from a plan used for a planning application. It shows the general intention of a boundary but should not be relied on in detail.
ii) If the northern part (Bridge Stores) is taken from a boundary running along and from the short western wall then its area is about 557.7 square yards. Normal measurement techniques in 1974 would permit a tolerance of up to 10 square yards in such a measurement. The area of the northern part on the basis of the more southerly boundary, along what I have called the boundary wall, is up to 88 square yards greater. This is outside the normal tolerance, and there must be a reason for it.
iii) The experts disagreed on several matters. Mr Wilson thought that although a measurement of an area specified in a conveyance does not necessarily define a boundary, if three boundaries are fixed the fourth should be taken as a line which fits with the measurement rather than one which makes the measurement seriously inaccurate. Mr Rowley thought that the fourth boundary could only be defined if the site is of even shape and the angle of the boundary known.
iv) Mr Rowley thought that whoever calculated the area on the 1974 plan made a mistake as to the plan he used for this purpose. Mr Wilson thought the measurement would have been correct and that it was the annexed plan that was used mistakenly for the conveyance.
- Mr Rowley produced three versions of a more northerly boundary: on one plan he showed two blue dotted lines, going to point B (the southwest corner of the garages), one from the southerly gatepost and the other from the short western wall. On another plan he showed a red line taken from the features shown on the 1926 plan. This line started, at the western boundary, with the short western wall. It then continued slightly north of a straight line, to run along the northern edge of the former features constituting the pig pen. This produced a kink northwards at the north-east corner of the irregular-shaped feature to which I have already referred. It then continued eastwards, on the line of the short eastern wall, to meet the west side of the garages, not at point B but about halfway up the west side of the southernmost garage as shown on the 1974 plan. He would then take the boundary line south along the front of the garages to point B and from there eastwards to the eastern boundary. The boundary would not, therefore, run through the garages, but it would prevent anyone from coming into or out of the southernmost garage with a vehicle, because half of the land immediately outside the garage would not have been within the same ownership as Bridge Stores. His calculation is that this boundary line, which I will refer to as his red line, gives an area conveyed of 557.7 square yards, which both experts agree is within the tolerance of surveys carried out in 1974, and is therefore not inconsistent with the given area of 553.4 square yards "or thereabouts".
- Mr Taylor's contention is that the true boundary is along the line which I call Mr Rowley's red line. However, that is a line which was not discernible on the ground at the time, because the judge held that all the features between the garages and the western boundary wall by reference to which it is drawn had been taken down before 1974. (That is not materially qualified by the fact that some traces of the short western wall could still be seen then and thereafter.) Nor is it a line which could be deduced from the stated area. If one could proceed on the basis that all aspects of the boundary of the site were defined except for (a) the point at which the southern boundary meets the western boundary (let me call it point X) and (b) the exact line of the southern boundary from that point as far as point B, you might be able to deduce the position of point X if, but only if, you also assume a straight line from X to B. However, the appellant does not argue for such a straight line. That seems to me to introduce additional variables such that the calculation cannot be carried out from the statement as to the area alone.
- On this the judge said this at paragraph 11:
"Doing the best he could to scale off an area represented by the figure of 553.4 square yards, that is to say the number in the Parcels Clause, [Mr Rowley] produces three lines. The first and it is very approximate because even doing the best he can, he gets slightly different figures from 553.4 and the other expert Mr Wilson who did an academic exercise drawing on his chartered surveyor's experience and using the plans only, came up with slightly different figures. But doing the best he could, I am satisfied he was doing his best, Mr Rowley came up with 3 potentially different places for the boundary. The first was a line roughly approximating to the old wall and pigsty aforesaid [this is what I call Mr Rowley's red line]; the second was running from the south west corner of the garages at point B, he drew two blue dotted lines across to the eastern wall and within both of those he was able to get somewhere close to the 553.4. Thus it was not possible to determine the boundary from the area alone, so one was left in a quandary because the precision of the Parcels Clause is out of place, because it does not show us the boundary."
- Mr Macpherson made a legitimate comment on that, that the northerly of the two blue lines does not seem to have been intended to be taken as a possible boundary. Also, it is not clear to me what figure Mr Rowley put forward as the area on the basis of the southerly blue line. But the judge's point is nevertheless valid, since with more than one variable you cannot work out all the details of the boundary simply from the statement as to the area conveyed. If Mr Taylor's case had been that the boundary was a straight line eastwards from point B to the western wall, the only dispute being where it would meet the western wall (point X), then he might have been able to argue that the position of point X could be decided, with sufficient accuracy and certainty, by applying the stated area and proceeding from all the other boundaries and boundary points as given. The difficulty there is that, first, this was not Mr Taylor's case and, secondly, there was no basis for it other than the stated area. No-one could have worked out what the correct boundary was from the measurement without further information (not provided by the conveyance or apparent on the ground) and a further survey.
- It seems to me that, because the verbal description includes not only the statement as to the area but also the words:
"the [premises known as Bridge Stores] with the outbuildings yard garden and conveniences thereto adjoining and belonging",
it is relevant, admissible and necessary to consider the evidence as to what, in April 1974, was the extent of the yard, garden and conveniences adjoining and belonging to Bridge Stores. In doing so, the objective test is to be applied, identified in Toplis v Green cited above: what would the reasonable layman (in the position of Mr and Mrs Stockhill, the intending purchasers) think he was buying as the yard and garden (and conveniences) adjoining and belonging to Bridge Stores?
- If that enquiry is addressed, what you find, on the facts as found by the judge, is that, at the relevant time, Bridge Stores had a garden or yard (or both) which was in part enclosed by the house itself on the north and west and by the garages on the east, and that to the south it was enclosed by the new boundary wall constructed between it and The Moorings. On Mr Taylor's contention, what was conveyed ran only to an invisible and irregular southern boundary which, at all points between the western wall and the garages, lay to the north of the boundary wall, and not even (a) in a straight line or (b) between any logical and objectively discernible starting points at either end. The land so determined could not fairly be described as the yard or garden adjoining and belonging to Bridge Stores; it would only be part of that yard or garden. The reasonable layman, looking at the land as it stood, with the terms of the document in hand, could not be expected to think he was buying an area of land defined by this invisible and irregular boundary, rather than one which ran as far as the boundary wall on the south.
- The judge held that, in practice, the boundary had been on the line of the boundary wall constructed in 1974 from the date of the sale to Mr and Mrs Stockhill and for ever thereafter until Mr Taylor took issue with it. Mr Macpherson did not challenge that, apart from the question whether the judge had found, or could have found, that the boundary wall was already in place at the time of the 1974 conveyance. His contention was that this did not displace the conclusion to be drawn from the true construction of the conveyance, that the boundary lay further north than the boundary wall. He argued that, absent any claim for rectification, the conveyance should take effect in accordance with its proper construction, and if Mr and Mrs Lambert wished to assert that they had acquired title to land further south, as far as the boundary wall, they needed to prove their case by way of adverse possession. The judge had made no findings on that aspect of the case, and it could not be assumed that the decision would be in Mr and Mrs Lambert's favour without more.
- Despite Mr Macpherson's clear and able submissions on behalf of Mr Taylor, I am satisfied that the judge was correct in law in his interpretation of the effect of the conveyance. He was faced with an inconsistency between, on the one hand, the rather precise statement of the area of the land conveyed and, on the other, the physical characteristics of the land in the area, supported by the indications given by the plan. The measurement of 553.4 square yards indicated an area which did not go as far south as the boundary wall, but it could not by itself justify the southern boundary for which Mr Taylor contends. The smaller area which it allows for would not extend as far south as the obvious boundary feature, namely the boundary wall. However, the reasonable layman, with the description in the document and the plan in hand would undoubtedly think that what was to be conveyed was all of the land south to the boundary wall. Only in that way would the transaction include the whole of the garden and yard adjoining and belonging to Bridge Stores. That conclusion is supported by the outline of the property as shown on the annexed plan which, in that respect, assists in understanding the verbal description in the parcels clause. That is so even if it is taken as no more than an indication of the general intention as to the boundary. Even on that basis it is inconsistent with the boundary being along Mr Rowley's red line.
- Thus there is an inconsistency within the conveyance, between the description by measurement and the other parts of the description. One or other has to yield. In that situation regard may be had to extrinsic evidence in order to resolve the conflict. It seems to me that it is Mr Taylor rather than Mr and Mrs Lambert who seeks to rely on such evidence, namely the condition of the land as it had been, but was no longer, before the relevant transaction. The surveyors' evidence showed that the explanation for the measurement of 553.4 square yards was that it was taken by reference to the former features of the short western wall, the pig-pen structures and the short eastern wall. Because none of this (other than some traces of the short western wall) existed by 1974, it seems to me that this counts as extrinsic evidence.
- By contrast the state of things at the time of the transaction is not in itself extrinsic evidence. The document cannot be understood without reference to it, particularly in a case in which the verbal description uses general phrases such as "the yard and garden adjoining and belonging to" Bridge Stores.
- That said, given the internal conflict within the parcels clause, this is a case in which extrinsic evidence is admissible. Therefore the real issue is not as to the admission of such evidence but as to the conclusion which the judge drew with the benefit of it. It enabled him to see, on the one hand, that the description by reference to a measured number of square yards was accounted for by reference to the former condition of the property. On the other hand he could see that the division of Mr and Mrs Green's land, effected for the purposes of defining the extent of their new property The Moorings and its garden and curtilage and therefore also that of Bridge Stores, did not correspond to the former condition of the property. Instead it used a new boundary line which had been marked by a one metre high stone wall, and this was indicated, at least in a general way, by the outline on the plan annexed to the conveyance.
- In those circumstances it seems to me that the judge was not in any way wrong in law in coming to the conclusion which he expressed at paragraphs 150 to 152 of his judgment:
"150. … I am satisfied that the area of 553 square yards in the conveyance is an error and was not checked by the parties to the conveyance who accepted it without question. It is wrong and should be disregarded.
151. [I have already quoted this paragraph of the judgment at paragraph  above.]
152. The solicitors erroneously put in a square yardage of 553.4, that was a miscalculation. I think what they have done and I find as a fact that this is what they did, is they scaled it off the original conveyance without actually checking that the actual boundary was further south than the position of those old walls and piggery walls and nobody ever double checked it. Accordingly it is an error; the true intention was to sell off the area marked by the factual boundary on that line B to C."
- I agree with the judge that the element in the parcels clause which must give way is the description by measurement. That part of the description is inadequate both because it was inconsistent with the other words in the description, with the plan and with the reality on the ground, and because it could not by itself identify the southern boundary as contended for by Mr Taylor. It is not saved by the introduction of extrinsic evidence which explains how it was arrived at. All that this shows is its irrelevance to the transaction as undertaken between Mr and Mrs Green and Mr and Mrs Stockhill, for which the then new boundary wall must be taken as the objectively intended definition of the boundary between the property retained and that sold. It would be absurd to allow this irrelevant and out of date measurement to override the conclusion to be drawn from the other parts of the verbal description in the parcels clause, supported as it is both by the plan and by the reality on the ground at the time of the transaction.
- I have referred to the two aerial photographs, from 1971 and 1973, as to which Mr Taylor sought permission to adduce them on the appeal. In the end, as I understand it, once Mr Din was shown the respectable provenance of the photographs, he did not object to our taking them into account. It is therefore unnecessary to rule formally on the application about them.
- It is also unnecessary to touch on the issues raised by the Respondent's Notice.
- For the reasons I have given, despite Mr Macpherson's skilful deployment of the arguments in support of Mr Taylor's contentions, I would dismiss the appeal.
Lord Justice Sullivan
- I agree.
Lord Justice Maurice Kay
- I also agree.
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