Boundary – Dispute as to ownership of grass verge – Dearth of evidence – Conveyance referring to non-existent Ordnance Survey – Plan attached to conveyance “for purposes of indentification only” – Whether court entitled to have regard to plan
The freehold title to property at Downton, Hordle, near Lymington-on-Sea, was conveyed by a conveyance dated March 19 1948 (the 1948 conveyance), by L Ltd to S, the predecessor in title of the plaintiff. S conveyed the land, later known as Downton Holiday Camp, to the plaintiff in October 1964. The plaintiff’s property was bounded on the south by Shorefield Road (the road), and on the east by Shorefield Holiday Village. That road and land had been conveyed by L Ltd in October 1958 to Shorefield Holiday Camps Ltd and the defendant.
A dispute arose between the parties as to the ownership of the strip of land forming the verge on the north side of the road, now a grass verge. The plaintiff claimed that, on the true construction of the conveyances of the parties’ respective properties, the grass verge belonged to him and that the defendant had trespassed on it by erecting a sign. Two preliminary issues arose for determination by the judge, namely: (1) as to the title in respect of the grass verge of Shorefield Road lying to the north of the road and running from Downton Lane in the east to the entrance to Downton Holiday Park in the west; and (2) whether works carried out by the defendant in 1989 preparatory to, and including, the construction of the wall on the defendant’s land attracted liability in damages for collapse of parts of the fence which the plaintiff had erected at or near his eastern boundary. The judge found for the defendant on both issues. The plaintiff appealed contending, inter alia, that the judge had not been entitled to infer from the evidence of a witness who had come to the area in 1954 that there had for some time in the past been a hedge along the relevant line and that he had been wrong to reject the evidence of the plan.
Held The appeal was allowed.
1. The parcel clause in the 1948 conveyance included a reference to “the 1932 Ordnance Survey map” when in fact there was no Ordnance Survey of that date, but one dated 1933, and the plot numbers had been taken from different editions of the Ordnance Survey. As a result, the parcel clause gave no help in defining the boundaries: see Neilson v Poole (1969) 20 P&CR 909.
2. However, although the plan attached to the conveyance was described as being “for identification purposes only”, it did not conflict with the words contained in the parcel clause (see Wigginton & Milner Ltd v Winster Engineering Ltd [1978] 1 WLR 1462, at p147 per Buckley LJ), but it was carefully drawn to a scale of 1/500, it used conventional methods to distinguish features, and it showed the exact edge of the boundary by a pecked line. There was therefore no reason to exclude it from consideration to solve the problem: see Hatfield v Moss [1988] 2 EGLR 58 per Nourse LJ, at p60.
3. The judge’s finding conflicted with the plan, from which he had been entitled to derive assistance, and his finding based on the evidence of a witness who had no knowledge of the area before 1954 was not a finding of primary fact but an inference with which the Court of Appeal could interfere.
Keith Wylie (instructed by David Ebert & Co, of Southampton) appeared for the plaintiff; Philip Glen (instructed by Tozers, of Exeter) appeared for the defendant.
