Stephenson and another v Johnson and another

Gift of part of family estate – Location of boundary unclear – Conveyancing plan of no assistance – Defendants subsequently buying land retained by donor – Defendants erecting fence in accordance with terms of purchase as varied in later discussions – Completed fence approved by surveyor on behalf of vendor – Gifted land subsequently bought by claimants – Claimants alerted to discrepancies between line of fence and line shown on earlier conveyancing plan – Whether boundary uncertainties resolved by a boundary agreement – Trial judge inferring such agreement from events immediately following defendants’ purchase – Claimants’ appeal dismissed By a deed of gift of October 1973, the owner (GC) of an estate in Gilling Yorks conveyed part of the land (the gifted property) to his wife (FC) . The plan annexed to the deed was expressed to be “for the purpose of identification”. There was, at the time, no fence or other feature on the ground to indicate the location of the northern boundary of the gifted land. Following the death of GC in 1975, the ownership of the estate (excluding the gifted land) passed to a relative (G-B), and FC moved to a house on the gifted land. In or about 1979, FC enclosed her garden by constructing a fence (the 1979 fence) that, for most of its length, ran parallel to, and slightly to the south of, the boundary line as shown on the 1973 plan. In 1986 G-B sold the principal mansion house of the estate and its adjoining land (the hall land) to the defendants. The sale excluded an irregular strip running between the intended southern boundary of the hall land and the northern boundary of the gifted land. By that time, certain sections of the 1979 fence had been demolished. By the terms of the conveyance, the defendants were required to construct, to certain specifications, a boundary fence running along a line that, at certain points, followed the line of the 1979 fence. The new fence was to be approved, when completed, by G-B’s surveyors. At or about the same time, FC, who was about to enter a retirement home, conveyed the gifted land, again by way of gift, to a relative (GV). Subject to certain alterations agreed with G-B’s surveyor and GV (who cultivated the strip under an informal agreement with G-B), the defendants completed the required fence (the defendants’ fence), which was approved by the surveyor in early 1988. Thereafter, until the death of GV in August 1993, the defendants’ fence was treated as the southern boundary of the hall land. In the autumn of 1993 GV’s administrators joined with G-B in arranging for the sale by auction of the gifted land together with the strip. The two parcels were bought by the claimants in November 1993 with express notice that the location of the northern boundary was in dispute. The claimants commenced county court proceedings in February 1998 contending that the defendants’ fence was incorrectly located in relation to the northern boundary shown on the 1973 plan, to the disadvantage of the claimants. The claim was rejected, the trial judge holding that, in the absence of a determinative conveyancing plan (each one being for purposes of identification only), he was entitled to infer from the conduct of the relevant parties, over the two years following the defendants’ purchase, that an agreement had been reached on the precise location of the northern boundary of the gifted property. The claimants appealed to the Court of Appeal. Held: The appeal was dismissed. 1. There was, on the facts, sufficient evidence to allow for the inference drawn in the court below. In particular, the judge was right to find that the approval of the surveyor went just as much to the location of the defendants’ fence as to its mode of construction. 2. Contrary to the submission made by the claimants, the law of adverse possession did not afford the sole or main means of resolving boundary disputes. The importance of boundary agreements as “acts of peace” was not to be underestimated: see the observations of Megarry J in Neilson v Poole (1969) 20 P&CR 909 at p919. 3. In ascertaining whether such an agreement could be inferred, the judge was right to look at the entirety of the parties’ conduct over the relevant period. There was no need to find an offer followed by an acceptance. John McDonald QC and Richard Selwyn-Sharpe (instructed by Darling & Stephensons, of Darlington) appeared for the appellants; Timothy Hirst (instructed by Swinburn Maddison, of Durham) appeared for the respondents. Alan Cooklin, barrister