Gillon v Baxter and another
Ward and Scott Baker LJJ and Sir Martin Nourse
Conveyance — Boundary dispute — Attached plan on small scale with boundary drawn in thick pen — Whether plan determinative of boundary — Whether judge entitled to look at features on ground — Appeal dismissed
The appellants and the respondents owned adjoining farms. A dispute arose over the boundary between the properties, and the appellant brought proceedings seeking a declaration as to its correct line. The parties agreed that the matter was determined by a 1985 conveyance, in which the former owner of both farms had transferred one property to the respondents’ predecessor in title. The 1985 conveyance was said to transfer “the land shown and edged with red on the plan bound up within and known as Lower Knapp Farm”. The plan in question was a photocopy, reduced from the original to a scale of 1:3650, with the boundary line delineated by way of a thick-nibbed felt-tip pen.
The judge proceeded on the basis that the conveyance, the plan and the surrounding circumstances had to be considered together when determining the boundary. He took the view that the plan was not definitive; it was on too small a scale and the boundary line had been drawn too thickly (equating to a width of 3m on the ground) to show anything more than the general area of the boundary. He found that the boundary followed the line of a fence that had existed at the date of the 1985 conveyance, which was situated 30m to the west of the line on the plan. The judge viewed as determinative the fact that, had he drawn the line any further east, the conveyance would have transferred a field but retained the only means of access to it, which was along a path to the field gate.
Conveyance — Boundary dispute — Attached plan on small scale with boundary drawn in thick pen — Whether plan determinative of boundary — Whether judge entitled to look at features on ground — Appeal dismissed
The appellants and the respondents owned adjoining farms. A dispute arose over the boundary between the properties, and the appellant brought proceedings seeking a declaration as to its correct line. The parties agreed that the matter was determined by a 1985 conveyance, in which the former owner of both farms had transferred one property to the respondents’ predecessor in title. The 1985 conveyance was said to transfer “the land shown and edged with red on the plan bound up within and known as Lower Knapp Farm”. The plan in question was a photocopy, reduced from the original to a scale of 1:3650, with the boundary line delineated by way of a thick-nibbed felt-tip pen.
The judge proceeded on the basis that the conveyance, the plan and the surrounding circumstances had to be considered together when determining the boundary. He took the view that the plan was not definitive; it was on too small a scale and the boundary line had been drawn too thickly (equating to a width of 3m on the ground) to show anything more than the general area of the boundary. He found that the boundary followed the line of a fence that had existed at the date of the 1985 conveyance, which was situated 30m to the west of the line on the plan. The judge viewed as determinative the fact that, had he drawn the line any further east, the conveyance would have transferred a field but retained the only means of access to it, which was along a path to the field gate.
The appellant appealed. He contended that: (i) the plan was intended to be determinative of the boundary; and (ii) the judge had been entitled to look further, that is, to the evidence on the ground, only to the extent of resolving the 3m area of uncertainty on the plan.
Held: The appeal was dismissed.
The present case was completely covered by the statement of principle in Alan Wibberley Building Ltd v Insley [1998] 2 EGLR 107, namely that maps were generally on so small a scale, with lines drawn so thickly, that they were usually for general indication only, and that it was necessary to look at the facts on the ground to determine the precise boundary. The judge in the present case had done all that was required of him, and, having viewed the topographical features of the land, had been entitled to attach decisive importance to the location of the field gate and the inability to access it if part of the path were not also conveyed. The parties to the 1985 conveyance must have intended both the gate and the material part of the path to pass on the sale: St Edmundsbury and Ipswich Diocesan Board of Finance (No 2) v Clark [1975] 2 EGLR 115 also applied.
Hugh Sims (instructed by Rundlewalker, of Exeter) appeared for the appellant; Mark Wonnacott (instructed by Bevan Ashfprd, of Exeter) appeared for the respondents.
Sally Dobson, barrister
