Waller, Carnwath and Maurice Kay LJJ
Disputed land — Conveyance–Boundary dispute — Land abutting adjoining area — Issue arising as to precise boundary — Judge relying on conveyances of adjoining land and physical evidence — Whether court entitled to interpret conveyance of disputed land by referring to extrinsic evidence — Appeal dismissed
The respondent held the paper title to an acre of land (the disputed land) that adjoined a property known as “Greenacres”, which was owned by the appellants. A dispute arose between the parties as to the precise boundary of the disputed land at the point where it abutted Greenacres. The difference between the two most likely positions for the boundary was only a few metres at the widest point.
The trial judge found in favour of the respondent. He relied upon expert witness evidence, obtained from a series of transactions in 1947, that related to the disputed land and the land immediately to the north and to features on the ground. Plans were attached to those transactions. The earliest conveyance concerning Greenacres, which was dated 1953, contained no plan, but later conveyances dated 1965 and 1985 did have plans attached. The appellants had relied upon a straight boundary line shown on those plans and derived from extrinsic evidence such as the remnant of a hawthorn hedge, barbed wire to the side of a line of mature oaks, the remains of some concrete posts and a 7ft stretch of old fencing.
Disputed land — Conveyance–Boundary dispute — Land abutting adjoining area — Issue arising as to precise boundary — Judge relying on conveyances of adjoining land and physical evidence — Whether court entitled to interpret conveyance of disputed land by referring to extrinsic evidence — Appeal dismissed
The respondent held the paper title to an acre of land (the disputed land) that adjoined a property known as “Greenacres”, which was owned by the appellants. A dispute arose between the parties as to the precise boundary of the disputed land at the point where it abutted Greenacres. The difference between the two most likely positions for the boundary was only a few metres at the widest point.
The trial judge found in favour of the respondent. He relied upon expert witness evidence, obtained from a series of transactions in 1947, that related to the disputed land and the land immediately to the north and to features on the ground. Plans were attached to those transactions. The earliest conveyance concerning Greenacres, which was dated 1953, contained no plan, but later conveyances dated 1965 and 1985 did have plans attached. The appellants had relied upon a straight boundary line shown on those plans and derived from extrinsic evidence such as the remnant of a hawthorn hedge, barbed wire to the side of a line of mature oaks, the remains of some concrete posts and a 7ft stretch of old fencing.
The appellants appealed and an issue arose as to whether it was appropriate for the court to interpret the extent of the disputed land conveyed by one conveyance by reference to later conveyances of surrounding land and extrinsic evidence. The parties did not seek to analyse the authorities in any depth, both being content for the court to approach the matter on the basis that the question concerned the probative value of any material relied upon rather than an issue of principle.
Held: The appeal was dismissed.
The judge was entitled, for the purpose of construing the 1947 conveyance of the disputed land, to have regard to the measurements in other related conveyances and to evidence relating to physical features on the land at the relevant time: Neilson v Poole (1969) 210 EG 113 and Hillman v Rogers (Note) [1998] PLSCS 142 considered.
Conveyances of land were an established exception to the general rule that extrinsic evidence was not admissible in construing a written contract. Although the conveyance was the starting point and extrinsic evidence might have a place only to the extent that the conveyance was unclear, modern conveyances were often indefinite or contradictory. In those circumstances, it would require strong justification to reject evidence of what the common vendor had done in subsequent conveyances.
In the context of a conveyance of land, where the documented information was unclear or ambiguous, it would be permissible to have regard to extraneous evidence, including that of subsequent conduct, subject to that evidence being of probative value in determining what the parties had intended. That qualification was crucial since, when one referred to “probative value”, it was important to be clear what needed to be proved.
In the present case, the issue concerned the line of a boundary fixed not later than 1947. Evidence of physical features that existed years later were irrelevant unless there was reason to think that they had existed in 1947 or were replacements for, or otherwise related to, physical features present in 1947. In principle, reference to the intentions of the parties meant that the parties to the original conveyance and the unilateral actions of the owner of one side of the boundary could not be relied upon as being binding on the owner of the other side. On the evidence, the judge had taken account of all such matters and was entitled to reject the appellants’ evidence: Watcham v Attorney General of East Africa Protectorate [1919] AC 533 considered.
Jonathan Gaunt QC and Stephen Jourdan (instructed by the Wilkes Partnership, of Birmingham) appeared for the appellants; Jeremy Cousins QC and Simon Clegg (instructed by Moran & Co, of Tamworth) appeared for the respondent.
Eileen O’Grady, barrister
