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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Akhtar & Ors v Brewster & Anor [2012] EWHC 3521 (Ch) (12 December 2012) URL: https://www.bailii.org/ew/cases/EWHC/Ch/2012/3521.html Cite as: [2012] EWHC 3521 (Ch) |
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CHANCERY DIVISION
B e f o r e :
(sitting as a Deputy Judge of the Chancery Division)
____________________
(1) JANE ELIZABETH AKHTAR (2) SULEMAN AKHTAR (3) ASH ISLAND LIMITED (4) TW ALLEN AND SONS (YACHTS) LIMITED |
Claimants |
|
and |
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(1) CHIRSTOPHER JOHN BREWSTER (2) LYNN ANNE BREWSTER |
Defendants |
____________________
Nathaniel Duckworth (instructed by Stepien Lake) for the Defendants
____________________
Crown Copyright ©
Introduction
"All that piece or parcel of land situate in the River Thames and forming part of an Island known as Ash Island East Molesey in the Parish of Hampton in the County of Middlesex which said piece or parcel of land with the abuttals and dimensions thereof (be the same little more or less) is for the purposes of identification only more particularly delineated and described in the plan annexed hereto and thereon coloured pink and green...
The dispute
The issues before the Court
(1) Construction of the 1947 Conveyance
27.1 First and foremost a conveyance is a contractual document to which ordinary principles of construction of documents apply. The process of construction involves the application of the usual principles of contract construction as set out by Lord Hoffman in Investors Compensation Scheme v West Bromwich Building Society [1998] 1 WLR 896:
"Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract".
27.2 Whereas the Court may in other contexts decline to reach a conclusion as to the meaning of a clause in a contract, a decisive result must be reached when construing a conveyance (Lewison on the Interpretation of Contracts (5th Edition), para 11.02).
27.3 To the extent that the subject matter of the conveyance cannot be identified from the conveyance itself, extrinsic evidence is admissible. In particular, topographical features present on the land at the time of the relevant conveyance is admissible as an aid to the construction of a conveyance to arrive at 'the most sensible result' (Lewison On the Interpretation of Contracts (5th edition), para. 11.04)
27.4 Similarly, evidence of subsequent conduct is admissible as an aid to the construction of a conveyance if it is probative of the parties' intention at the date of the conveyance (Lewison para 11.05; Watcham v Att-Gen. of the East Africa Protectorate [1919] AC 533; Ali v Lane [2007] 1 P&CR 26). In Ali v Lane left this question open. Carnwath L.J stated at paras.36-38:
"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.
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 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."
On the question whether acts of successors-in-title to the original conveyancing parties were admissible as extrinsic evidence Carnwath LJ continued:
"I would add that in principle reference to the intention 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".
27.5 Whilst the issue of whether acts by subsequent owners might be admissible was not decided in Ali v Lane, paragraph 11.05 of Lewison concludes as follows:
"In practice many boundary disputes are ultimately determined by a consideration of acts of ownership over the disputed land. If one party to a boundary dispute can prove a consistent course of conduct evincing ownership, then unless the title deeds are clear (in which case the dispute is unlikely to have arisen anyway) it is probable that the acts of ownership will carry the day."
That is the position for which the Defendants contend in this case.
27.6 The Defendants submit that the principle of allowing extrinsic evidence is conceded in Ali v Lane to the extent of the conduct of the original parties to the conveyance, and that it is therefore simply a matter of deciding what should be the limits of the Ali v Lane exception. The Defendants submit that evidence of long user, even by successors, should be admissible for reasons of policy and pragmatism. Sometimes, the Court has no evidence other than this evidence, and yet it has to reach a conclusion as to the location of the boundaries, and it would be strange and undesirable if the law tied the Court's hands in this way.
28.1 A plan which is expressed to be "for the purposes of identification only" (or words to like effect) is intended to be used to locate the land, but not to identify its precise boundaries. Having said that, it may still be taken into account in the construction process provided that it does not conflict with the verbal description. The starting point is Neilson v Poole (1969) 20 P & CR 909 in which Megarry J had to construe the parcels clause of a conveyance which contained both the phrase "for identification purposes only" and "more particularly delineated on the plan". At p.916, he said that the effect of the phrase "for identification purposes only".
"Seems to be to confine the use of the plan to ascertaining where the land is situated and to prevent the plan from controlling the parcels in the body of the conveyance... "
Of the phrase "more particularly delineated...", he said that the words:
"tend to show that in cases of conflict or uncertainty the plan is to prevail over any verbal description."
He went on to conclude that where both forms of expression are used together they tend to be "mutually stultifying".
28.2 These views were considered by the Court of Appeal in Wigginton Ltd v Winster Ltd [1978] 1 WLR 1462. That case also contained both forms of phrase and the question for the Court was whether it was necessary to have regard to evidence outside the conveyance in question on the grounds that the words of qualification reduced the reliance which could be placed upon the plan. Buckley LJ cited the passages referred to above and said (at p. 1471) that the comments of Megarry J. that the phrase "for the purposes of identification only" confined the use of the plan to determining where the land was situated were obiter. Rather, Buckley LJ concluded:
" ...in so far as the plan does not conflict with the parcels, I can see no reason why, because it is described as being "for identification purposes 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 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 the parcel".
Bridge LJ said (at p.1475):
"I cannot think that any of the judicial pronouncements on this subject to which we were referred in argument and which have been cited in the judgment of Buckley LJ were made in contemplation of a case where the boundary shown on a plan "for the purposes of identification only" is the sole means by which the conveyance affords to indicate where that boundary is intended to be drawn. To refer to the plan in such a case in order to ascertain the boundary allows the plan merely to elucidate, not to control, the parcels. The ascertainment of boundaries being an integral part of the process of identifying the land conveyed, I cannot see why, as a matter of language, the qualifying words "for the purpose of identification only" should inhibit the use of the plan for this purpose when no other means is available by which the relevant boundary can be ascertained."
28.3 A similarly worded parcels clause was considered by the Court of Appeal in Affleck v Shorefield Holidays Limited (18 November 1997, unreported). That case concerned a plan which was not annotated with dimensions as in this action but which was described as "carefully drawn Harman J. expressed the view that Megarry J. in Neilson v Poole did not hold that where parcels are imprecise but the plan (although for identification only) is carefully drawn, the plan cannot control the boundary. Peter Gibson LJ agreed with that view.
28.4 The Court of Appeal approached the construction of a conveyance containing the same phrase in the same way in Wools v Powline (CA, unreported, 10 February 1999).
28.5 A plan will not necessary prevail over evidence of topographical features on the land at the time of the conveyance - in appropriate cases the former may be preferred to the latter (Brown v Pretot [2011] EWCA Civ 873, para 26). The Court will more readily reject lines marked on a plan in favour of topographical evidence if the plan is expressed to be for the purposes of identification only (Cameron v Boggiano [2012] EWCA Civ 157).
The 1947 Conveyance
29.1 The parcels clause, in clause 1, conveys "ALL THAT piece or parcel of land situate in the River Thames and forming part of the island known as Ash Island East Molesey in the Parish of Hampton in the County of Middlesex which said piece or parcel of land with the abuttals and dimensions thereof (be the same little more or less) is for the purposes of identification only more particularly delineated and described in the plan annexed hereto and thereon coloured pink and green".
29.2 Clause 1 also confers a right of way "over and along the strip of land six feet wide shown coloured brown on the said plan ", but reserves a right of way in favour of "the owners and occupiers for the time being of that part of Ash Island situate to the West of the land hereby conveyed... over and along the strip of land six feet wide shown coloured green on the said plan."
Submission of the Claimants
Submissions of the Defendants
43.1 the 1947 Conveyance does not make clear whether the measurements are straight line measurements or measurements which take into account the curvature of the shoreline;
43.2 if they are the latter, an issue arises as to accretion and erosion in the last 65 years. Further, there may have been changes through man-made reinforcements;
43.3 Attempts to do a pure measuring exercise have not been satisfactory: see paras. 12-14 of Mr Francis's report dated 10 September 2012.
(i) The Defendants' land (the red land) was conveyed under the relevant 1947 conveyance to George Booker (as purchaser) and to Walter Bowen (as subpurchaser). The first time that the red land was conveyed to someone who was not an original party to the 1947 conveyance was 25th August 1969.
(ii) The Fourth Claimant's land (the blue land) was conveyed under the relevant 1947 conveyance to George Booker (as purchaser) and Thomas Allen (as subpurchaser). The first time that the blue land was conveyed to someone who was not an original party to the relevant 1947 conveyance was 11th May 2000.
(iii) The First Claimant's land (the beige land) was conveyed under the relevant 1947 conveyance to George Booker and Alfred Hughes (as subpurchaser). It was conveyed back to George Booker on 15th July 1950. The first time that the beige land was conveyed on to someone who had not been a party to the relevant 1947 Conveyance was 27th October 1972.
(iv) The Second Claimant's land (the orange land) is more difficult. It was the subject of a conveyance dated 30th July 1984 from Douglas and Kathleen Chapman to the First Claimant and Andrew Chapman. However, it is not known when it was first conveyed on to someone who had not been a party to the relevant 1947 conveyance.
(i) The 1972 OS map is on a scale of 1:1250. As Mr Spencer pointed out in both his written and oral evidence, mapping at that scale is only accurate to +/- 1.25m. Given that the amount of land in issue at the northern end of the Defendants' western boundary is only 1.5m, a tolerance of +/-1.25m affects the utility of the scaling exercise.
(ii) The method of production of the 1972 is also open to question. Either the 1972 OS map was produced by process of manual tracing from aerial photography, as Mr Spencer indicated in his written report [para 8.4] - a method which is susceptible to imprecision - or alternatively, as Mr Spencer suggested in his oral evidence, it was the product of a ground survey which was questionable in that it contained features which were contrary to the evidence. For example, it is unlikely that the fencing on the western boundary comprised straight lines, contrary to the 1972 OS map. Both experts' surveyed plans indicate that the more southerly of the fencing was not straight, and the remnants of the northern section on Mr Francis' surveyed plan also contained significant kinks.
(iii) There is an issue as to why it is that the 1972 OS plan did not contain the predecessor to the green gate. The Defendants submit that in the light of the evidence, particularly of the First Claimant, that an old wooden gate had been there since the 1960's that the omission of the same from the 1972 OS plan must be an omission. They suggest that it can be accounted either because it was not picked up from the air or because it was missed on a ground survey.
(i) There is a 2.5 metre discrepancy between the south eastern shoreline on the modem plan and the equivalent black line on the 1972 OS map.
(ii) The location of the sluice gates at the eastern end of the Island and the line of the northern shore do not marry up.
(iii) Looking at the Defendants' land itself on the plan, it is clear that the south-western comer of the Defendants' land appears a little over 2m to the west of both the landing stage and the chainlink fence - the difference is seen at Appendix H.
Discussion
Conclusion as to position of the boundaries
Adverse possession Introduction
The law
" there are two elements necessary for legal possession: (1) a sufficient degree of physical custody and control ("factual possession"); (2) an intention to exercise such custody and control on one's own behalf and for one's own benefit ("intention to possess"). What is crucial to understand is that, without the requisite intention, in law there can be no possession."
"41. In Powell's case Slade J said, at pp. 470-471:
"(3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed ... everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so...
Intention to possess
42. ...Slade J reformulated the requirement (to my mind correctly) as requiring an "intention, in one's own name and on one's own behalf to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow." "
"Where the evidence establishes that the person claiming title under the Limitation Act 1980 has occupied the land and made full use of it in the way in which an owner would, I consider that in the normal case he will not have to adduce additional evidence to establish that he had the intention to possess. It is in cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation that those acts will be insufficient to establish the intention to possess. But it is different if the actions of the occupier make it clear that he is using the land in the way in which a full owner would and in such a way that the owner is excluded."
"Possession is a matter of fact depending on all the particular circumstances of the case. In very many cases possession cannot, in the nature of things, be continuous from day to day, and it is well established that possession may continue to subsist notwithstanding that there are intervals, and sometimes long intervals, between the acts of user... In the case of farmland, this must habitually be the position; for example, as regards arable land during winter months."
(i) Occasional grazing of goats and clearing of scrub;
(ii) Parking of cars on a small scale on a large site;
(iii) Cutting timber and repairing fences.
Defendant's submissions regarding moorings
The Claimants' submissions regarding moorings
110.1 The periods in which the Defendants' tenants were in situ;
110.2 The position of the tenants' boats during the relevant periods (alongside the disputed land or neatly tucked in behind the bow of Nonsuch).
Discussion
122.1 the concrete steps provided the means to obtain access to and from the river bank;
122.2 the concrete steps sit immediately either side of the "stand-off' the clear purpose of which was to enable boats to safely moor alongside it[5].
122.3 if the boats moored alongside the bow of Nonsuch II, there would have been no steps onto the shore; the boat would have been adjacent to the Defendants' bedroom window; there would, as the Second Claimant explained in his oral evidence, be greater noise disruption; there would be a risk of damage to both boats during winter. I accept the evidence of the First Defendant in this regard.
Other factors regarding adverse possession other than the moorings
Conclusion on adverse possession
Note 1 The old wooden gate, the chainlink and timber fencing and the landing stage are features that have been in place longer than any of the parties can remember. [Back] Note 2 See Mr Bolam's evidence [para 4] and that of Ms Fitzgerald [para 4]. [Back] Note 3 See the authorities reviewed in Jordan on Adverse Possession at 13-03 to 13-08. [Back] Note 4 Substantially the same point was made by Cairns LJ in Red House Farms (Thorndon) Ltd v Catchpole [1977] 2 EGLR 125, at 126K-L. [Back] Note 5 The Second Claimant sought to suggest that a boat could not moor against this stand off alone because, in the absence of a second stand off, it would pivot and be damaged against the bank. This is wrong. First, as the First Defendant explained the stand off consisted of two wooden poles on either side of the sycamore tree — there was therefore no pivot. Secondly, we know that boats did moor along side the stand off because both Mr Sinclair and the owner of the orange speedboat clearly did so. [Back]