Dispute over ownership of boundary ditch – Plan annexed to relevant conveyance for purpose of identification only – Discrepancy between area mentioned on plan and that stated in parcels clause – Whether trial judge correct in adopting boundary as shown on plan – Plaintiff’s appeal allowed
An ancient ditch formed the southern boundary of the plaintiff’s property and the northern boundary of a row of gardens at the rear of 9-13 Wilburton Road in the parish of Stretham, Cambridgeshire. In 1988 the defendant purchased no 13 and shortly thereafter obtained planning permission for its demolition and for the building of a larger dwelling in its place. The defendant’s plans, based on the assumption that the ditch belonged to him, were not feasible without placing a pipe in the ditch and covering it over. His contractors began to lay the pipe in early January 1990, whereupon the plaintiff instituted proceedings claiming, inter alia, a declaration that the ditch formed part of his property. It was common ground that the issue turned on the proper construction of a conveyance made in 1926, in favour of a predecessor of the plaintiff, of two parcels of land, which were stated to contain “nineteen acres one rood and one pole according to the Ordnance Survey map 1902 . . . which said hereditaments with the boundaries and dimensions thereof are for the purposes of identification only delineated on the plan drawn on these presents”. The plan annexed to the conveyance appeared to indicate that the boundary between the parties’ respective properties ran along the northern bank of the ditch.
Having observed that no copy of the 1902 map had been produced, the district judge declared that he derived no assistance from plans of any kind and and maintained that the question accordingly turned on the history of the usage of the ditch, which indicated that rights characteristic of ownership were exclusively exercised by the owners from time to time of the plaintiff’s land (the northern owners). The district judge relied particularly on the fact that those owners alone attended to the cleansing and maintenance of the ditch, and that the owners of gardens to the south considered themselves bound to seek the permission of the northern owners before carrying out any alterations to the ditch. Substantially the same historic facts were relied on by the district judge to uphold the plaintiff’s alternative claim that, even if his paper title were bad, he had acquired ownership by adverse possession.
Following an appeal by the defendant, both rulings were overturned by the circuit judge, who, again, had no sight of the 1902 plan. As regards the 1926 conveyance, he ruled that, even though it was annexed for identification purposes only, the boundary shown thereon should govern the matter, as it was proper to infer that the 1902 plan showed the same boundary as the 1926 plan. As regards the adverse possession claim, he ruled that the necessary animus possidendi could not be inferred from the acts of cleansing and maintaining the ditch, as these were equally consistent with the exercise of an easement. The plaintiff appealed to the Court of Appeal.
Held The appeal was allowed on both points.
1. Both judges below had correctly understood that, while a plan annexed for identification only could not prevail over the express wording of the parcels clause, it could serve as an aid to construction in so far as it was not inconsistent with that wording: see Wigginton & Milner Ltd v Winster Engineering Ltd [1978] 3 All ER 436. However, there was no evidence to support the inference drawn by the circuit judge that the 1926 plan was a copy of the 1902 plan, particularly as the area mentioned in the 1926 plan (19.241 acres) did not correspond with the area to be found in the parcels clause, which converted to 19.256 acres. The district judge had, accordingly, correctly turned to the historical evidence.
2. That same evidence did support the alternative possession claim, as it extended well beyond the cleansing and maintenance considered by the circuit judge.
Geraint Jones (instructed by Archer & Archer, of Ely) appeared for the plaintiff appellant; Barry Payton and Philip Norman (instructed by Hegarty & Co, of Peterborough) appeared for the defendant respondent.
Alan Cooklin, barrister
