Avon Estates Ltd v Evans and another

Conveyance – Boundary dispute — Hedge – Plan attached to conveyance delineating boundary line by T-marks – Dispute arising between owners of adjoining commercial properties as to position of boundary – Claimant seeking to establish ownership of hedge dividing properties – Defendants claiming adverse possession of disputed land – Defendants counterclaiming for damages as result of alternation to roadway – Claim and counterclaim dismissedThe claimant company was the owner of a park, on which there were approximately 225 large mobile homes. The defendants owned a neighbouring property operated as a stud farm for thoroughbred horses. The two properties were in common ownership until 1955 when the then owner divided the site by conveying the farm to the first defendant’s predecessor. The park was retained and eventually transferred to the claimant in 1984.A dispute arose concerning the boundary running from west to east along the properties. Most of the disputed boundary was established by the 1955 conveyance to which a plan was attached, showing a solid black line between the fields that were sold and field which was retained. Along that section of the boundary, there were “T” marks drawn on the side of the retained land, i.e. that which became the park, but there was no reference to those “T” marks anywhere else in the document. It was common ground that the solid black line on the ordnance survey map represented the line of an ancient hedge, and that the practice of the ordnance survey when plotting such a feature was to draw the line, within the limits of accuracy available given the scale of the map, along the centre line of such hedge. The map itself did not purport to show boundaries between land in different ownership, but only the physical features of the terrain mapped.The claimant brought proceedings against the defendants contending that the T marks on the plan indicated that the boundary feature, in this case the hedge, was intended to be owned by the owners of the land on the site on which the T marks appeared, that is to say the park. Further, the fact that the hedge was a growing hedge and so a feature with an appreciable width to it, indicated that the owner of the hedge was intended to be also the owner of a strip of land on the far side of the centre line of the growers sufficient to accommodate a reasonable growth of the hedge. The defendants argued that there was no rule of law that T marks on the plan invariably indicated ownership of the feature referred to. If the T marks were not referred to in the text of the conveyance itself, the court should either find that no meaning could be attributed to them or that they meant something other than ownership. In any event, the defendants argued that they were entitled to a strip of land on the claimant’s side of the hedge by adverse possession. The defendants also counterclaimed for damages, arguing that the claimant had modified a road along the western boundary of the farm, so that it interfered with the natural drainage. Held: The claim and the counterclaim were dismissed. (1) There was no single meaning or default meaning established by the evidence or authority that could be attached to T marks where a meaning could not be ascertained by reference to the body of the conveyance or other admissible material. It might well be that the parties to the 1955 conveyance subjectively intended some meaning to be attached, but if they did, given the range of possibilities as to what it might be and the absence of any evidence to enable the court to identify what their intention might have been, that intention had not been carried into effect: Seeckts v Derwent [2004] EWCA Civ 393; [2004] PLSCS 76 distinguished; Powell v Macfarlane (1977) 38 P&CR 452 and Well Barn Farming Ltd v Backhouse [2005] EWHC 1520 (Ch); [2005] 3 EGLR 109 and JA Pye (Oxford) Ltd v United Kingdom 44302/02 [2005] 3 EGLR 1; [2005] 49 EG 90 considered.It would no doubt commonly be the case that the appropriate person to maintain a feature was the owner of it, but the attribution of such responsibility was a matter for agreement between parties to a conveyance and there was nothing to stop them agreeing any terms they chose. One could envisage a range of rights or obligations that parties might agree in relation to a boundary feature depending on the circumstances, e.g. maintenance, but even if that was intended, the exact content of the obligation was not necessarily self explanatory. (2) On the evidence in the present case, the boundary established by the 1955 conveyance was a line between the centres of the growers of the hedge, as they existed at that date. The experts’ agreed plan plotted the line between the growers that remained, but it might be that that plan could be further refined by plotting also the centres of any of those that had been cut off but were still visible, on the assumption that they would have been present in 1955. Otherwise, the best evidence of where the boundary was in 1955 would be the plan as it currently existed.(3) The court was not satisfied that the evidence showed the necessary degree of physical control of the disputed areas to found a claim for adverse possession. Furthermore, since such use did not show a clear intention to possess and exclude others from the disputed areas, it was not such as to give rise to any presumption of the necessary intention to possess those areas, so that the onus would be on the defendants to establish that intention which they had not done. (4) As regards the defendants’ counterclaim, the court was not satisfied that the surface of the road had been raised in such a way as would increase the extent to which water lying on the surface was retained by the road acting as a sort of dam. It was accepted that the road was widened, but that in itself would make no difference to its ability to hold back surface water.Kevin Leigh (instructed by Emms Gilmore Liberson Ltd, of Birmingham) appeared for the claimant; Julian Greenhill (instructed by Rickerbys LLP, of Cheltenham) appeared for the defendants.Eileen O’Grady, barrister