Trespass — Injunction — Acquiescence — Estoppel — Defendant’s objects on claimants’ land — No objections to objects for three years — Whether defence of acquiescence or estoppel based on mere delay in objecting — Whether defence based on reliance and detriment
The parties owned adjoining properties that were
in common ownership until the sale of one of them to the defendant in 1979. The
claimants acquired their property from the former common owner in 1980. The
claimants alleged various acts of trespass by the defendant. In the county
court the judge determined the position of the boundary, holding that a wall
between the two properties belonged to the claimants. However, in relation to
two of the five alleged acts of trespass, in which an oil tank and certain
flowerpots had been placed on the disputed wall, the judge upheld a defence of
acquiescence, and excluded these from the injunction he had ordered; he found
that the oil tank and flowerpots had been on the wall at least three years
before the claimants’ solicitors objected to them in May 1993. The claimants
appealed.
lies an encouragement or allowance of a party to believe something to his
detriment. The judge was wrong to conclude that the defence of acquiescence
should succeed because of delay in complaint; the correct approach was to
consider whether the defendant had established that he had relied on any action
or inaction of the claimants. The defendant had not so established on the evidence
and had not established any detriment.
The following cases are
referred to in this report.
Electrolux Ltd v Electrix
Ltd (No 2) (1953) 71 RPC 23
Erlanger v New
Sombrero Phosphate Co (1878) 3 AC 1218
Habib Bank Ltd v Habib
Bank AG Zurich [1981] 1 WLR 1265; [1981] 2 All ER 650; [1982] RPC 19, CA
Shaw v Applegate
[1977] 1 WLR 970; [1978] 1 All ER 123; (1977) 35 P&CR 181, CA
Willmott v Barber
(1880) 15 ChD 96; 49 LJ Ch 792; 43 LT 95; 28 WR 911
This was an appeal by the
claimants, Emlyn William Jones and Valerie Signe Jones, from a decision of
Judge Eifion Roberts QC in proceedings by the claimants for trespass against
the defendant, Brian Stones.
Richard Hall (instructed by William George &
Sons, of Porthmadog) appeared for the appellants; Neil Thompson (instructed by
Pinders, of Derby) represented the respondent.
Giving the judgment of the court, ALDOUS LJ said: This appeal is
concerned with two issues arising out of a boundary dispute that came before
Judge Eifion Roberts QC, sitting in Caernarfon County Court.
Background facts
Abersoch Manor, in the county of Gwynedd,
consisted of the manor house and stables. By 1979 the stables had been
converted into a cottage and the manor was run as a hotel by Mr and Mrs Ball.
By a conveyance dated 10
cottage, known as Manor Cottage, to, in effect, Mr Brian Stones, who used it as
a weekend and holiday cottage. Attached to the 1979 conveyance was a plan
stated to be for the purpose of identification only. That plan was inaccurate,
but it showed in general terms the boundary between the properties.
If the property is approached from the highway to
the west, the manor lies to the north and the cottage to the south of the
approach road, and they are separated by an old stone wall along the
north/south boundary. At the south end of that wall there is a gateway defined
by two pillars. Thereafter the boundary proceeds east and then turns south.
In about 1980 Mr and Mrs Ball added extensions to
the hotel at the side where the boundary between the two properties met. They
also converted the hotel into a rest home. In March 1987 Mr and Mrs Jones
purchased the manor.
In 1989 Mr Stones made the cottage his permanent
residence, and from about that time disputes between him and Mr and Mrs Jones
arose. Each blamed the other for what happened. Those disputes came to a head
in February 1995, when Mr and Mrs Jones started these proceedings.
Claim
The particulars of claim alleged that Mr Stones
had committed five acts of trespass. First, it was alleged that he had placed a
green oil tank on and across the old stone wall. Second, it was alleged that he
had placed and maintained flowerpots on the wall. Complaint was also made about
a fence erected in 1993, a block wall closing an access to the manor and a
concrete platform and gas tank. Mr and Mrs Jones claimed a declaration and a
mandatory injunction requiring Mr Stones to move the two tanks, the concrete
platform, the flowerpots, the fence and the block wall.
Mr Stones did not dispute any of the acts of
alleged trespass. He contended in his defence that he had not trespassed
because the stone wall was a party wall and because the fence, the block wall,
the concrete platform and the gas tank were all situated on his land.
Alternatively, he alleged that Mr and Mrs Jones were not entitled to the
injunction claimed because of acquiescence or estoppel.
The judge held that the old stone wall was not a
party wall; it belonged to Mr and Mrs Jones. He also held that the boundary was
situated along the lines for which Mr
followed that Mr
judge therefore made declarations delineating the boundary between the
properties and ordered that the fence, the gas tank and the concrete platform
be removed within two months. There is no appeal against that part of the
judge’s order.
The judge upheld the defence of acquiescence in
relation to the oil tank and the flowerpots, but rejected it in relation to the
other acts of trespass. He therefore excluded from the injunction preventing
further trespass the retention and use of the oil tank and six flowerpots.
Against that part of the judge’s order, and the order for costs that he made,
Mr
court.
Judgment
Having decided the two main issues in favour of Mr
and Mrs Jones, the judge came to consider the individual acts of infringement.
At p11 of the transcript of his judgment he said:
I now turn to the specific allegations of
trespass which are made by the plaintiffs, both in their original and in their
amended particulars of claim in para 3. It is alleged in para 3(1) that in 1990
the defendant placed a green diesel oil tank on the wall as shown on the master
plan. The defendant admits that he placed it there but in 1992, not in 1990. It
does not sit on the full width of the wall but on part of it only. In para 3(2)
it is alleged that also in 1990 the defendant put flowerpots on the wall, which
still remain there. The defendant, supported by Mrs Ball, says that the pots
had been put there in the Balls’ time
to put flowers in them. I remind myself that the Balls had grown what I saw as
a tall Leylandii hedge on the manor side of the stone wall.
No complaint, whether oral or written, was made
by the plaintiffs about either the tank or the flowerpots until they consulted
solicitors, who first wrote about them… on 28 May 1993. I accept that the tank
and the pots with flowers have been there certainly from 1990, thus about three
years had elapsed before any complaint was made. Applying the principle
enunciated by Oliver J in Taylor Fashions Ltd v Liverpool Victoria
Trustees Co Ltd [1982] QB 133, it seems to me that after that sort of
period had elapsed it would be unfair to allow the plaintiffs to deny that they
knowingly or unknowingly permitted or encouraged the defendant to assume to his
detriment that he was entitled to have those items on the wall. That being so,
I shall not grant any relief to the plaintiffs in respect of those two items,
which can remain where they are.
He went on to consider the allegations of
acquiescence in relation to the other acts of trespass. He concluded that there
was no acquiescence. His reasons can be seen from a passage on p13 of his
judgment, where he said:
There was no question of his having relied upon
any assumption derived from or encouraged by the plaintiffs standing by in any
way. The defendant in fact chose to erect this fence at a time when, as he must
have known, the plaintiffs were away on holiday for two weeks, without having
given them any warning whatever. Even if they had been there and complained to
him at the time, I am sure he would not have heeded them but carried on in
reliance of his own belief, as he did much later on in another context in
November 1993 when, on any view, a boundary dispute was raging, as he well
knew.
I am unable to find anything in the nature of
estoppel or acquiescence in relation to the fence, which, in my judgment, is a
clear trespass and will have to be moved back to allow a clear 3ft unobstructed
strip between the fence and the south wall of extension
There is little or no dispute as to the facts
relating to the oil tank and the six flowerpots. It seems that the flowerpots
were originally owned by Mr and Mrs Ball and were placed on the wall at the
time that they owned the property. According to the evidence of Mr Ball, he and
his wife gave them to Mr Stones when they sold the manor. Thereafter
Mr
made by Mr and Mrs Jones until the letter before action of 28 May 1993, to
which I will have to come. The explanation for that given by Mr and Mrs Jones
was that they did not see that the flowerpots were objectionable at the time.
The oil tank was placed on the wall in about
November 1992, so that it extended about 20mm over a notional line drawn down
the middle of the wall. No complaint was made at that time and nothing was said
until the letter of 28 May. That letter was written by solicitors acting for
Mr
We have been consulted by Mr and Mrs EW Jones of
Abersoch Manor, Lon Sarn Bach, Abersoch, and are instructed to point out to you
that the boundary wall between your premises and our Clients’ premises upon
which you have placed a tank covering the whole width of the wall, and
flowerpots, is in fact our Clients’ property and forms part of Abersoch Manor.
In the circumstances we have been instructed to request you to remove the plant
pots and any other items you have placed on the top of the wall including the
large green tank which was installed during the winter. Please comply with this
request within the next 14 days, failing which our Client will take such steps
in the matter as are appropriate including Court proceedings if so advised.
The law
Mr Richard Hall, who appeared for Mr and Mrs
Jones, submitted that it had not been established that Mr and Mrs Jones had encouraged
Mr Stones to believe that he had the right to maintain the flowerpots and the
oil tank on the wall. In any case, he submitted that at least three of the
elements that were required by Willmott v Barber (1880) 15 ChD 96
at p105 had not been made out.
Whether or not the elements said to be required to
establish the defence in the judgment of Fry J in Willmott v Barber
are necessary was considered by Buckley LJ in Shaw v Applegate
[1977] 1 WLR 970. At p978B he cited this extract from the judgment of Sir
Raymond Evershed MR in Electrolux Ltd v Electrix Ltd (No 2) (1953)
71 RPC 23:
‘I confess that I have found some difficulty — or
should find some difficulty if it were necessary to make up my mind and express
a view whether all five requisites which Fry J stated in Willmott v Barber
15
plaintiff will be deprived of his right to succeed in an action on the ground
of acquiesence. All cases (and this is a trite but useful observation to repeat)
must be read in the light of the facts of the particular case.’
Buckley LJ continued at p978D:
So I do not, as at present advised, think it is
clear that it is essential to find all the five tests set out by Fry J
literally applicable and satisfied in any particular case. The real test, I
think, must be whether upon the facts of the particular case the situation has
become such that it would be dishonest or unconscionable for the plaintiff, or
the person having the right sought to be enforced, to continue to seek to
enforce it.
As I have pointed out before in this court, the
five elements referred to in Willmott v Barber can be important
considerations, but the modern approach to acquiescence and estoppel is that
laid down in Habib Bank Ltd v Habib Bank AG Zurich [1981] 1 WLR
1265 at p1283. In that case Oliver LJ considered a submission that all five probanda
set out by Fry
rejected that submission. Before doing so, he cited (at p1284D) this extract
from the judgment of Sir Barnes Peacock, which was cited with approval by Lord
Blackburn in Erlanger v New Sombrero Phosphate Co (1878) 3 AC
1218 at p1279:
”The doctrine of laches in courts of equity is
not an arbitrary or a technical doctrine. Where it would be practically unjust
to give a remedy, either because the party has, by his conduct done that which
might fairly be regarded as equivalent to a waiver of it, or where, by his
conduct and neglect he has, though perhaps not waiving that remedy, yet put the
other party in a situation in which it would not be reasonable to place him if
the remedy were afterwards to be asserted, in either of these cases lapse of
time and delay are most material. But in every case if an argument against
relief, which otherwise would be just, is founded upon mere delay, that delay
of course not amounting to a bar by any statute of limitations, the validity of
that defence must be tried upon principles substantially equitable. Two
circumstances always important in such cases are the length of the delay and
the nature of the acts done during the interval, which might affect either
party and cause a balance of justice or injustice in taking the one course or
the other, so far as it relates to the remedy.”
Lord Blackburn continued:
‘I have looked in vain for any authority which
gives a more distinct and definite rule than this, and I think, from the nature
of the inquiry, it must always be a question of more or less, depending on the
degree of diligence which might reasonably be required, and the degree of
change which has occurred, whether the balance of justice or injustice is in
favour of granting the remedy or withholding it. The determination of such a
question must largely depend on the turn of mind of those who have to decide,
and must therefore be subject to uncertainty; but that, I think, is inherent in
the nature of the inquiry.’
Oliver LJ continued at p1285B:
For myself, I believe that the law as it has
developed over the past 20 years has now evolved a far broader approach to the
problem than that suggested by Mr
dependent upon the historical accident of whether any particular right was
first recognised by the common law or was invented by the Court of Chancery. It
is an approach exemplified in such cases as Inwards v Baker
[1965] 2 QB 29 and Crabb v Arun District Council [1976] Ch 179.
We have been referred at length to a recent judgment of my own in Taylor
Fashions Ltd v Liverpool Victoria Trustees Co Ltd [1981] 2 WLR 576
in which I ventured to collect and review the authorities. I there said, at
p593:
‘Furthermore the most recent cases indicate, in
my judgment, that the application of the Ramsden v Dyson LR 1 HL
129 principle — whether you call it proprietary estoppel, estoppel by
acquiescence or estoppel by encouragement is really immaterial — requires a
very much broader approach which is directed rather at ascertaining whether, in
particular individual circumstances, it would be unconscionable for a party to
be permitted to deny that which, knowingly, or unknowingly, he has allowed or
encouraged another to assume to his detriment than to inquiring whether the
circumstances can be fitted within the confines of some preconceived formula
serving as a universal yardstick for every form of unconscionable behaviour.’
Whilst, having heard the judgment read by
counsel, I could wish that it had been more succinct, that statement at least
is one to which I adhere.
Watkins LJ agreed with that judgment. Stephenson
LJ said at p1287G:
I agree and would like to express my concurrence
with what Oliver LJ has said, both about archaic and arcane distinctions and in
his statement in Taylor Fashions Ltd v Liverpool Victoria Trustees Co
Ltd [1981] 2 WLR 576 which he read from his judgment.
I believe that the statement of Oliver LJ in the Habib
Bank case encapsulates the law. The reference to other cases can help to
show what acts can be relevant when deciding whether it would be unconscionable
to allow a party to proceed upon a particular basis, but do not lay down
principles that have to be met and applied in every case.
Conclusion
At the heart of estoppel or acquiescence lies an
encouragement or allowance of a party to believe something to his detriment.
Thus, the first question to determine is whether any action or inaction by Mr
and Mrs Jones has encouraged Mr Stones to believe that he was entitled to place
the oil tank on the wall in the position that he did, and to keep the
flowerpots there. Second, if there was such encouragement, then it is necessary
to consider whether that caused detriment to Mr Stones. Third, the court should
decide whether, in all the circumstances of the case, it was unconscionable for
Mr and Mrs Jones to assert their legal rights.
I will deal first with the flowerpots. The judge
made no finding as to whether Mr and Mrs Jones believed that the wall belonged
to them before they consulted solicitors. That was not surprising as there was
no evidence given on the matter. There was evidence that Mr and Mrs Jones knew
of the flowerpots and did not see them as objectionable. The judge also did not
decide at what time Mr Stones believed that the wall was a party wall, nor
whether he was led to that belief by any action or inaction of Mr and Mrs
Jones. That is also not surprising as there was no evidence on the matter.
Mr
where he said:
With regard to the stone boundary wall, no
reference is made to its ownership in the conveyance of 10 September 1979. It
is approximately 18 inches wide and, in my opinion, should be treated as a
party wall with each of us being responsible for maintenance of our side of the
wall. When Mr and Mrs Ball sold Manor Cottage to me they also included some
stone plant pots and troughs which lay on top of the wall and in which I have
continued to plant flowers. These containers remain on the top of the wall. It
did not occur to me that when in 1992 I placed a small diesel tank lying partly
on top of the wall and partly protruding onto my land (but not lying beyond the
halfway point of the wall, that is to say over that part of the wall or land
belonging to the Plaintiffs), that this would give cause for complaint by the
Plaintiffs.
Mr Hall submitted that the judge’s conclusion was
based upon mere delay and therefore he had misapplied the law. Mr Neil
Thompson, on behalf of Mr Stones, submitted that the judge had drawn to his
attention the relevant law and had made findings of fact and that this court
should not conclude that he had misapplied the law. He had taken into account
the facts and come to the correct conclusion.
In my judgment, the judge came to the wrong
conclusion. He concluded that the defence of acquiescence should succeed
because of delay in complaint. That, I believe, can be seen from the passage in
the judgment that I have read relating to his finding that acquiescence had
been established, when compared with the passage that I have read in which he
rejected the defence of acquiescence in respect of the fence. In the latter
passage, to reject the defence, he relied upon Mr
his right so that he was not encouraged by Mr and Mrs Jones standing by in any
way: whereas he made no such finding in respect of the flowerpots. In my view,
the correct approach was to consider whether Mr Stones had established that he
had relied on any action or inaction of Mr and Mrs Jones. That he had not so
established upon the evidence. Further, Mr Stones did not establish that he had
suffered any detriment by being allowed to maintain the flowerpots on the wall
owned by Mr and Mrs Jones. In the circumstances, none of the essential elements
needed to establish a defence of acquiescence was made out. Delay was not
sufficient.
As to the oil tank, the evidence did not establish
when Mr and Mrs Jones became aware of the oil tank sitting on the wall. I will
assume that they saw it shortly after it was put on the wall and therefore they
took no action for about six months. Even so, there is no evidence that such
inaction in respect of the oil tank, or any inaction in respect of the
flowerpots, caused Mr Stones to believe that he could maintain the tank on the
wall situated as it is. As he stated in his witness statement, he believed it
would not give cause for complaint by the plaintiffs. Mr
establish the defence of acquiescence because he did not show that anything
that Mr and Mrs
believe that he had the right to maintain the tank in the position on the wall
where he had put it. I am also doubtful whether in fact he suffered any
detriment from anything Mr and Mrs Jones did or did not do. He placed the tank
upon the wall himself and, in my view, it could not be seriously suggested that
there was detriment in not objecting immediately and now requiring him to
remove it.
For those reasons, I have come to the conclusion
that the judge came to the wrong conclusion on the defences of acquiescence in
relation to the oil tank and the flowerpots, and therefore this appeal should
be allowed.
TUCKEY LJ agreed
and did not add anything.
