Trespass – Boundary dispute – History of litigation between appellants and respondents over boundary – Appellants removing part of respondents’ fence on ground of encroachment – Respondents claiming damages for trespass – Judge finding marginal seasonal movement of fence not amounting to encroachment and awarding damages against appellants – Whether movement of fence amounting to trespass – Whether appellants entitled to resort to self-help – Appeal dismissed
The appellants and the respondents owned adjoining residential properties and had, over a number of years, been involved in an ongoing dispute over a 50ft stretch of boundary between and to the rear of their properties. Court orders had been obtained defining the boundary line and declaring that the boundary was correctly delineated by the south face of the fence that the respondents had erected in 2003. Subsequently, the respondents carried out works to remove infilling within 1m of the boundary, as agreed by the parties in a Tomlin order. In 2004, they carried out further works to install more substantial concrete bases for the fence posts.
The appellants took the view that the works had caused the fence to move so that, by late 2005, it encroached a considerable way into their garden. Rather than bringing further proceedings, while the respondents were away, they removed a section of fence, including three fence posts, and placed it on the respondents’ land.
On their return, the respondents brought proceedings against the appellants for an injunction to restrain trespass and damages. Allowing the claim in the county court, the recorder found that the line of the fence had moved marginally, but that this had occurred naturally by way of settlement of the land downhill and was insufficient in extent to establish encroachment; seasonal movement of 25mm or more was to be expected. The respondents admitted a technical trespass of 150mm by the concrete foundations of the fence posts. The recorder awarded £910 in damages to the respondents and, on a counter-claim, a nominal £1 to the appellants in respect of the concrete foundations.
The appellants appealed. They contended that even the slightest encroachment was a trespass, such that the recorder should have found the slight movement of the fence over to their side to amount to a trespass. The respondents submitted that even if that were so, the appellants had not been entitled to resort to self-help by removing part of the fence.
Held: The appeal was dismissed.
This was not a case in which the remedy of self-redress or abatement was available to the appellants. It was neither a clear and simple case nor an emergency. The situation was not urgent since it had existed for the best part of two years since the works done by the respondents in 2004. Although perhaps some marginal encroachment had taken place, the matter was unclear. Moreover, it was not a case in which, with the history of litigation between the parties, it was appropriate to resort to self-help rather than to invoke the assistance of the court process: Burton v Winters [1993] 1 WLR 1077 applied. Further, this was not a case in which, had the appellants applied for an injunction requiring the respondents to move the fence back, they would necessarily have got it on the facts found by the judge. Even if the gradual attrition by seasonal movement were to continue, the question of whether the appropriate remedy was by way of injunction would depend on the particular facts. The appellants’ action had been unjustified and the award of damages against them had been entirely correct.
The appellants appeared in person; Michael Norman (instructed by Bernard Chill & Axtell, of Southampton) appeared for the respondents.
Sally Dobson, barrister
