Whitby and another v Vince and another

Owners of adjacent properties concerned about overgrown state of area at the end of their gardens – Owners reaching informal agreement on boundary line for purpose of organising work of tidying up – Trees planted along agreed line – Later owners discovering that agreed line at variance with line shown on title deeds – Whether later owner disadvantaged by the agreement entitled to recover land between the two lines 1 and 2 Market Hill Cottages were adjacent cottages standing at the base of a long triangular piece of land (the triangle) near Woodbridge, Suffolk. At all material times until 1948 the cottages and land were in sole ownership. In that year the cottages were sold to separate buyers, the triangle being divided to form two back gardens of unequal size. The smaller garden serving no 1 tapered to a narrow wedge and was, accordingly, both backed on to and flanked by its neighbour. In 1986 no 2 was acquired by D at a time when no 1 belonged to H, who, though uninterested in gardening, shared D’s concern that the area around the end of the wedge (the short boundary) badly needed tidying up, a task which D was keen to undertake. Having agreed with H, quite informally, on the line that the short boundary should take, D planted a row of conifers along that line. In 1987 no 2 was acquired by the plaintiffs, who assumed that their garden extended to the newly-planted trees. In 1989 the defendants acquired no 1 and thereafter claimed that the shorter boundary, as shown by the 1948 conveyances, was placed some 17m closer to the apex of the triangle than the line indicated by the trees, which, accordingly, lay well within their garden. In 1995 the defendants chopped the trees down while the plaintiffs were absent, thus prompting the plaintiffs to sue for trespass and appropriate declarations in which they succeeded in Colchester County Court, where it was held that, although the line contended for by the defendants was in truth that shown in a plan annexed to the title deeds, the plaintiffs had correctly maintained, applying Neilson v Poole (1969) 20 P&CR 909, that the agreement between H and D, being an agreement as to the interpretation of the conveyancing document, was effective to define the boundary. The defendants appealed. Held The appeal was allowed. As correctly stated by Megarry J in Neilsen (supra), a boundary agreement could be either an agreement for the transfer of land, as where, for example, the parties had agreed to the straightening of an irregular line, or an agreement to do no more than identify on the ground what the documents describe in words or delineate on the plans. The first form of agreement did not arise for consideration. However, the judge had erred in placing the agreement between H and D in the second category. There was no evidence that H and D had brought any documents or measuring instruments to the area in question. As found by the judge, their purpose was to agree where the line “should be” for the tidying up that they both desired, and which H was pleased to leave to D. The agreement was not an agreement to establish the shorter boundary for all time. The judge could not be criticised for expressing disapproval of the defendants’ conduct, but, as matters had turned out, they had acted within the law. Roderick Newton (instructed by Bates Wells & Braithwaite, of Ipswich) appeared for the plaintiffs; the defendants appeared in person. Alan Cooklin, barrister