Strachey v Ramage

Boundary – Conveyance – Attached plan – Owner of land selling in two parcels — Erection of fence prior to sale – Conveyance to respondent indicating that plan for purpose of identification only – Covenant to repair “boundary fence” – Whether boundary to be determined by reference to plan or position of fence – Appeal allowedIn 1988, a landowner sold a block of land in two parcels, one consisting of a house, buildings and land and the other comprising fields and barns. The former was purchased by the respondent’s predecessors in title by a conveyance dated February 1988 and the latter by the appellant’s predecessor in September 1988. In January 1988, prior to either sale, the vendor had marked out and erected a boundary fence between the two parcels.The February conveyance contained a parcels clause in which the property conveyed was described as a dwelling-house and buildings comprising parts of four numbered enclosures on a 1908 Ordnance Survey sheet; it was also shown “for the purpose of identification only” edged in red on an attached plan. Another clause contained a covenant by the vendor to repair “the boundary fence between the property and the retained land”.Title to the fields became registered in 1993; the title conveyed by the February conveyance was registered when the respondent acquired it in 1996. The appellant acquired the fields in 2001. A dispute arose over the location of the boundary between the two properties. The respondent maintained that the fence did not correctly reflect the boundary and that his land extended west beyond it to a hedge; he sought to rely upon the plan attached to the February 1988 conveyance, which appeared to show a different boundary line from that followed by the fence. The appellant sought a declaration that, on the correct interpretation of the February conveyance, the boundary followed the line of the fence or that, alternatively, she and her predecessors had been in adverse possession of the disputed land for more than 12 years since 1988, such that the respondent held his registered title to it on trust for her.Dismissing the appellant’s claim, the judge held that the plan attached to the February conveyance indicated the boundary and could be supplemented by inferences drawn from features on the ground, including the hedge, in order to determine the exact line. He concluded that the boundary line was that for which the respondent contended. Rejecting the appellant’s adverse possession argument, he held that any period of adverse possession would have had to commence prior to October 1988, so as to be complete before the Human Rights Act 1998 came into force, and that there had been insufficient acts of possession by the appellant’s predecessor prior to that date. The appellant appealed.Held: The appeal was allowed. (1) The question of where the boundary lay, on the correct construction of the February conveyance, had to be answered by considering that conveyance in the context of the circumstances in which it was granted, with regard to any evidence properly admissible for the purposes of its interpretation. Although the crucial provision was the parcels clause, that clause could not be read in isolation from the remainder of the document: Wigginton & Milner Ltd v Winster Engineering Ltd [1978] 1 WLR 1462 applied. The use of the formula “for the purpose of identification only” ordinarily indicated that the plan so described was intended only to indicate the position and situation of the land and not to identify its precise boundaries. The use of such a plan was therefore appropriate only where the verbal description in the parcels clause identified the limits of the land with adequate precision, since that description was intended to be decisive: Alan Wibberley Building Ltd v Insley [1998] 2 EGLR 107; [1998] 29 EG 111 considered.The language of the parcels clause in the February conveyance was insufficient in itself to identify the relevant boundary, and, by incorporating a plan “for the purpose of identification only”, the parties had indicated that the plan could also not be used to identify it. Accordingly, the parcels clause was not so precise or certain as to identify the boundary without the need to have recourse to the other provisions of the conveyance or the fact of the newly erected fence. The judge had erred in failing to construe the parcels clause in the context of the conveyance as a whole; in particular, the clauses that referred to a “boundary fence”, which the vendor covenanted to maintain and repair. That reference could only have been a reference to the fence erected in January 1988. Where the conveyance had been preceded by the staking out of an agreed boundary, and there was an apparent discrepancy between the conveyance plan and the line of the fence, the evidence on the ground would supersede the plan and would be taken as identifying the true boundary: Willson v Greene [1971] 1 WLR 635 applied; Scarfe v Adams [1981] 1 All ER 843 distinguished.Although the plan attached to the respondent’s registered title did not show the boundary along the line of the fence, that did not mean that the respondent had become the registered proprietor of the disputed land, since the Land Registry plan expressly showed only the “general position” of the boundary and not the exact line, in accordance with the “general boundaries rule”. It was appropriate to make an order for the alteration of the register so as to correct the filed plans attached to both parties’ titles, pursuant to paras 2 and 3 of Schedule 4 to the Land Registration Act 2002.(2) It was not necessary to decide the adverse possession issue in the light of the above. However, there was no reason why the appellant’s predecessor should not be regarded as having both factual possession of the disputed land and the intention to possess it as from the date of the February conveyance sufficient to cause time to start running against the respondent’s predecessors, although, while he still occupied under a licence or tenancy time would have run in favour of his landlord.Serena Gowling (instructed by Clarke Willmott) appeared for the appellant; Robert Sheridan (instructed by Nigel Pullen Solicitors) appeared for the respondent.Sally Dobson, barrister