Boundary dispute — River running between two properties — Hedge to north of river — Respondents establishing paper title to whole river bed — Cornish hedge held to be party structure, half being maintainable by each party — Respondents also establishing title by adverse possession — County court making declarations accordingly — Decision upheld by Court of Appeal
This appeal concerned the boundary between two properties in the parish of Stithians, Cornwall, known respectively as Trevallan, which was owned by the appellant and his wife (“X”), and Little Trebarveth Foundry, which was owned by the respondents (“Y”). X acquired the freehold of Trevallan by conveyance dated February 2 1976. Y acquired the freehold of Trebarveth by conveyance dated February 19 1988. Y claimed against X in the county court damages for trespass and an injunction. That claim was based on Y’s assertion of title to the River Kennal, which ran between the two properties. Trevallan was situated on the north of the river and Trebarveth on the south and to the southern part of the “cornish hedge” which separated the garden of Trevallan from the river. The top of the hedge was 18ins above the level of the garden. The county court held that Y had established a paper title to the whole of the bed of the river and that the cornish hedge on the north of the river was a party structure with the southern half belonging to and maintainable by Y and the northern half belonging to and maintainable by X. Further, if that were wrong, Y had established title by adverse possession. X appealed, challenging the court’s conclusion on all counts.
Held The appeal was dismissed.
1. There was a prima facie presumption that, as the original lease in 1859 and a subsequent conveyance had described Y’s land as being bounded by the main river on the north, the conveyance presumptively included half of the river bed and no more: see Micklethwait v Newlay Bridge Co (1886) 33 ChD 133. However, that presumption could be rebutted by the language of the conveyance or the surrounding circumstances or the nature of the subject or a combination of those things.
2. In the present case, the judge was entitled to find that the river was a watercourse and that, in the absence of evidence of the existence of any other watercourse “belonging to”, “running through” or being “part and parcel of the tenement”, it had to be taken that what was referred to was the river.
3. Once it was established that the river was the only watercourse that could properly be described as running through, belonging to or being part and parcel of the tenement, it followed that it was intended to pass the whole of the river bed and its retaining bank, which was in fact the southern part of the cornish hedge.
4. If that conclusion were wrong, there was no doubt that Y had established possessory title. The county court judge had considered at length the evidence and the acts of possession alleged and found them to be established. The only issue was whether such acts were sufficient to ground a possessory title.
5. What acts were sufficient depended on the circumstances, in particular the nature of the land and the manner in which land of that nature was commonly used or enjoyed: see Buckinghamshire County Council v Moran [1990] Ch 623 at p 641. Further, it was clear that trivial acts of trespass did not constitute adverse possession: see Williams Bros Direct Supply v Rafferty [1958] 1 QB 159 at p 173.
6. In the present case, over the necessary period, the owners of Trebarveth had used and enjoyed the whole of the river and the northern bank in the way that they would commonly be used and enjoyed by someone professing ownership. In other circumstances and on isolated occasions, such acts might be characterised as trivial acts of trespass, but bearing in mind the nature of the land and the regularity of the acts relied upon, together with the fact that X had plainly discontinued possession (if he had ever exercised it), the judge was right to conclude that the acts were sufficient to constitute title by adverse possession.
7. Finally, where, as here, there was a single structure forming both the bank of the river and the clear boundary of the garden of the adjoining property, the judge took the only course open to him in treating it as a party wall and dividing it accordingly.
David Hodge (instructed by Bray & Dilks, of Truro) appeared for the appellant; Robert Meeke (instructed by Vivian Thomas & Jervis, of Penzance) appeared for the respondents.
