Parties owning adjoining land – Original conveyance separating ownership of land expressing boundary to be by party wall or fence – Defendant erecting wall six or nine inches inside original party fence – Whether new wall defendant’s wall or party wall – Judge finding new to be wall party wall – Appeal dismissed
By a conveyance dated 16 September 1965, two plots of land were conveyed into separate ownership. They subsequently became known as 4 and 5 Orchard Gardens, Whitburn, Tyne & Wear. Clause 4 included into the conveyance “…the division garden walls or fences, if any, on the north and south sides of the piece of land hereby conveyed shall be party walls or fences and maintainable accordingly, and should be erected to the approval of the architects of the vendor as to one half of the thickness thereof on the property hereby conveyed and as to the other half thereof on the adjoining land now or formerly of the vendor”. Originally, there was a wooden fence between the two properties, which was a party fence. However, the fence was eventually removed and in about 1979 the owner of number 4, the defendant, erected a wall about six or nine inches behind the line of the fence, towards his property, which he regarded as his own wall. Number 5 was at that time owned by N, who in spite of the building of the wall planted a number of trees in such a position that they grew over it.
In 1990 the claimants moved into number 5, and between 1990 and 1994 both parties made various attempts to try and contain the tress to prevent its growth. However, in April 1995 the claimants returned from holiday and found that the defendant, without having given notice, had decided to prune the trees, cutting them back to approximately the outside edge of the wall. The claimants issued proceedings, claiming for the damage to the trees and their loss of amenity value. The defendant claimed that he had only cut the trees back to the boundary. The judge found that the parties, who had lived in the properties until 1979, had regarded the fence as the party wall and that the claimants had assumed the wall was the replacement party wall and on the basis of the intention of clause 4 concluded that the wall was in reality a party wall. On those facts, he held that the defendant had trespassed on to the claimants’ land.
Held: The appeal was dismissed.
The 1965 conveyance intended that a wall between the properties was to be treated as a boundary wall. The judge had been entitled to conclude that when the defendant had constructed the wall, it had been intended to demarcate the boundary between the properties. The wall had been in place for 20 years and had been treated as a boundary wall between the properties: Neilson v Poole (1969) 20 P&CR 909 applied.
Philip Kramer (instructed by Richard Reed & Co) appeared for the claimants; Frederick Such (instructed by James E Baird & Co, of Sunderland) appeared for the defendant.
Thomas Elliott, barrister
