Akhtar and others v Brewster and another

Boundaries – Evidence – Interpretation of plan – Owners of neighbouring properties disputing position of boundary – Earlier conveyance plan indicating boundary –  Whether permissible to have regard to topographical features as aid to construction – Whether defendants acquiring title by adverse possession – Claim dismissed The claimants and the defendants owned adjoining properties on Ash Island in the River Thames. The island had once been in common ownership but individual plots were sold off by a series of three conveyances on 1947. Both parties operated the business of granting mooring rights on licence on their land. The licence fees which boat owners paid for mooring rights depended on the length of their boats. A dispute arose as to the western boundary of the defendants’ land, which affected the parties’ respective mooring rights. The claimants sought declarations as to the position of the boundary. They contended that the defendants’ boundary met the river front 89 feet 11 inches from a tree in the north east corner of the defendants’ land. They relied upon, inter alia, a plan attached to the three 1947 conveyances which, they said, identified the size and boundaries of the land held by the claimants and the defendants (the 1947 conveyance plan). The defendants argued their western boundary met the river front some 100 feet from the tree. They contended that it was not possible to rely on the 1947 plan because it was not to scale. In the alternative, the defendants argued that they had acquired title to the disputed land by adverse possession. Held: The claim was dismissed. (1) A conveyance was a contractual document to which ordinary principles of construction of documents applied. The process of construction involved 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. Whereas the court might in other contexts decline to reach a conclusion as to the meaning of a clause in a contract, a decisive result had to be reached when construing a conveyance. To the extent that the subject matter of the conveyance could not be identified from the conveyance itself, extrinsic evidence was admissible. In particular, topographical features present on the land at the time of the relevant conveyance were admissible as an aid to the construction of a conveyance to arrive at the most sensible result. Similarly, evidence of subsequent conduct was admissible as an aid to the construction of a conveyance if it was probative of the parties’ intention at the date of the conveyance: Ali v Lane [2007] 1 EGLR 71; [2007] 02 EG 126 considered. A plan which was expressed to be “for the purposes of identification only” (or words to like effect) was intended to be used to locate the land, but not to identify its precise boundaries. However, it might still be taken into account in the construction process provided that it did not conflict with the verbal description. A plan would not necessary prevail over evidence of topographical features on the land at the time of the conveyance. The court would more readily reject lines marked on a plan in favour of topographical evidence if the plan was expressed to be for the purposes of identification only: Neilson v Poole (1969) 20 P&CR 909; Wigginton Ltd v Winster Ltd [1978] 1 WLR 1462; Affleck v Shorefield Holidays Ltd [1997] PLSCS 205, [1997] EGCS 159; Wools v Powling [1999] PLSCS 33; Brown v Pretot [2011] EWCA Civ 873, [2007] 02 EG 126; and Cameron v Boggiano [2012] EWCA Civ 157, [2012] 1 EGLR 127 considered. In the present case, it was common ground that the 1947 conveyance was not clear and unequivocal so that it was necessary to consider other matters, including topographical features and the subsequent conduct of the parties to the 1947 conveyance with a view to considering what matters were indicative of the intention of those parties. Considering everything on the balance of probabilities, it was more likely than not that the position of the boundaries was that for which the defendants contended and the disputed land belonged to the defendants. (2) If the court’s findings as to ownership were wrong, the defendants had acquired title by adverse possession. It was not necessary for the adverse possessor to continually occupy the land. The mere fact that there were intervals, eg a hiatus between mooring tenants, did not, of itself, mean that the defendants had gone out of possession. In addition, in order to constitute possession, the use of the land had to be such that the owner, if present at the land, would clearly appreciate that the claimant was not merely a persistent trespasser but was actually seeking to dispossess him. Trivial acts would rarely be sufficient to establish adverse possession. Based upon the totality of the evidence, the defendants had since 1976 made use of the disputed land in the manner in which one would reasonably expect the owner of the land to do and in a manner which clearly signalled to the outside world that they were treating it as their own. Accordingly, if and to the extent that they did not already own the disputed land, the defendants had acquired the land by adverse possession at least by 1998. The issue then of the application of the Land Registration Act 2002 did not arise. Paul de la Piquerie (instructed by IBB Solicitors, of Uxbridge) appeared for the claimants; Nathaniel Duckworth (instructed by Stepien Lake) appeared for the defendants. Eileen O’Grady, barrister