B e f o r e :
THE MASTER OF THE ROLLS (Sir Raymond Evershed),
LORD JUSTICE JENKINS and
LORD JUSTICE MORRIS.
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HOPGOOD
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Appellant
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-v-
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BROWN
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Respondent
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(Transcript of the Shorthand Notes of the Association of
Official Shorthandwriters, Limited, Room 392, Royal Courts of Justice,
and 2, New Square, Lincoln's Inn, W.C.2.)
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Mr H. LESTER (instructed by Messrs Sidney Torrance & Co.)
appeared on behalf of the Appellant (Plaintiff).
Mr A.E.HOLDSWORTH (Instructed by Messrs Sackville, Hulkes &
Archdale, Hornchurch, Essex) appeared on behalf of the Respondent (Defendant).
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
THE MASTER OF TEE ROLLS: At the beginning of his Judgment in the case of Wallington v. Townsend reported in 1939 2 All England Reports at page 225 (a case which, on its facts, is sufficiently near to the present to be useful in some respects and to which, therefore, I shall return later), Mr Justice Morton observed:
"The case is a good illustration of the fact that actions in which the subject-matter is comparatively trifling often give rise to the most difficult questions of fact and of law".
In the present case (after, I believe, two days in the Court below aid the best part of two days in this Court) we are now called upon to deliver Judgment in respect of a matter which, to an outsider, might appear to be of a somewhat trifling character. Certain it is that the litigation can fairly be said to be the result, in some measure, of misfortune, I think of want of good advice — I do not say of bad advice, because I know not sufficiently of the facts — given to the Plaintiff, and some lack, I think inevitable in such cases, of good temper.
The case is concerned with two small slots of land, part of what has at all material times been called the Havering Park Estate on a proposed road, or a road since made up, called Hamlet Road in Romford in Essex. These two plots, as the plans indicate, were part of an area which had been divided into a number of small plots for building purposes, a fact which (as will later appear) is of itself of some, not negligible, significance. The two plots are adjacent, the one lying roughly to the north of the other, and they have therefore throughout the litigation been conveniently referred to as the north plot and the south plot; and I shall adhere to that convenient nomenclature.
The story begins on the 22nd June, 1932, when one Allen Ansell conveyed both plots to one Cyril Recent Turner. I have in my hand the conveyance to Turner of the southern of the two plots, and there is upon the face of the Deed a small plan bearing out what I have said, that the plot sold was one of a number of like plots which had been marked out upon some plan of the so-called Harvering Park Estate designed for building purposes. The parcels in that Deed were
"All that piece of land situate in the Parish of Romford in the County of Essex part of the land known as the Havering Park Estate conveyed by a conveyance",
which is then described,
"which said piece of land has the several dimensions following, namely, a frontage to the said proposed Hamlet Road of 40 feet or thereabouts, a length along its south-west side of 170 feet or thereabouts and a width at its rear or south-east side of 31 feet or thereabouts, is adjoined on its north-east side by other land conveyed or about to be conveyed by the vendor to the purchaser, (and) comprises the whole of the plot numbered 56 and the south-westerly portion of the plot numbered 55 in the vendor's development of that portion of the estate and for the purpose of facilitating identification only is delineated and shown by the pink colour on the plan drawn on these presents".
There is also made part of the Deed, by the Second Schedule to it, a number of covenants which the purchaser entered into, referring to such matters as building line and fences, etc. Now, the description which I have read, as it will be recalled, gave three of the four essential measurements in a plot of land of this character. It gave no measurement for what it would have called the north-easterly side of the area, namely, the boundary between this plot and what I have called the northern plot, which was also sold, as will be recalled from the schedule, to Mr Turner on the same date. The other conveyance — and I do not read it — contained a description of that north plot in all respects mutatis mutandis corresponding to the description of the southern plot which I have read, save only that in that case it was the southern or south-westerly boundary which was not measured, namely, this same boundary separating the two plots the one from the other. The only other difference was that the northern boundary was slightly longer, 173 feet, and the eastern boundary slightly shorter (namely, 30 feet) than the corresponding measurements of the southern and eastern boundaries of the southern plot.
Let me say, having looked at the plan, that it must be obvious, it would inevitably be the case in building lots of this kind, that the plots are of regular dimensions. It is not possible to imagine that the boundaries were intended to be otherwise than along straight lines from the frontage to the rear. But the plans are small, there is no description of the area, and I draw again attention to the formula there used, "for the purpose of facilitating identification only" the plot is delineated on the plan. At that time it appears that both these plots were wholly vacant and unbuilt upon. I say "it appears'' because it is not entirely clear whether at that stage there was on any part of the land anything to indicate the line of any of its boundaries, but from my understanding of the facts this much is clear, that nothing had been placed along the southern boundary of the northern plot, or the northern boundary of the southern plot (which is the same thing) to indicate on the surface of the earth where the boundary between them ran; nor, of course, was there any need at that time or for some little time afterwards so to do, since both plots were in the same hands. Turner in fact proceeded in due course to sell to Walker and, without taking time about it, it may be taken that the descriptions in those conveyances corresponded exactly with the descriptions in the conveyances of 1932.
I come to the 18th July, 1949, when, for the first relevant time, the ownership of the two plots, north and south, was divided; for on that date, by two conveyances, talker sold the north plot to a Company known as W. & M. Brown (Builders) Limited and sold the south plot to M.W. Brown. It might well be supposed that there was some connection between W. &. M. Brown (Builders) Limited, and M. W. Brown, and that supposition would be correct. Mr Brown, who is the Defendant in this case (though he was at the trial described as a greengrocer) had an interest in the building company; but it was not a controlling interest. He was a Director, but the greater part of the shares and the control of the Company was in Mr Walter Brown, who was the Defendant's father.
In 1951 the first events occurred from which all that has happened in this litigation has flowed. Mr Brown, owner of the southern plot, desired to build upon his plot a bungalow and a garage, and for that purpose plans were prepared by him or on his behalf. He proceeded, with those plans, to approach the Company in which he was interested, but which he did not control, and invited the Company, first of all, to agree with him the position which, as a result of the building, the boundary between his plot and the Company's plot would inevitably take and, second, to build for him the bungalow and garage according to the plan.
The most satisfactory way for me to deal, with this exceedingly important matter of fact is now to read two paragraphs from page 7 of the long and careful Judgment of the County Court Judge.
"Mr Brown", said he, "himself stated in evidence that he had no intention of encroaching upon the Company's boundary and that there was no intention on the Company's part of permitting him to do so. He was supported on both points by his father who, as I have said, was in a position to control the Company. There was no cross-examination to suggest that this encroachment was a matter of design. Both witnesses struck me as completely honest and reliable. Neither they nor anybody else had apparently ever taken measurements to show exactly where the dividing line between the two properties ought to run. I have come to the conclusion of fact that both Brown and the Company acted with complete bona fides and intended the flank wall of the garage to run along and for its full length of 15 feet to be the boundary line of their respective properties".
It was somewhat suggested, as I understood the argument, that there was no evidence to support the conclusion of fact which I last read, but I am quite clear that there was ample evidence to support that conclusion. Again I do not desire to take undue time. I am content to read one passage at page 7 of the Judge's notes from the evidence in cross-examination of Mr Brown, the Defendant;
"No question of Company giving me any extra land. If in fact it was built on adjoining land, this was a mistake. The brick wall was put up intending it for the boundary between my property and the Company's. It was so understood by me in my capacity as owner of the south property and as Director of the Company owning the north property".
Arising from that last sentence, Mr Lester took the point that, whatever might have happened in other circumstances, the Company here was really never bound at all by any of the consequences which might otherwise have flowed from what took place between Mr Brown, the Defendant, and the Company. He said that, following the strict language of that answer (which no doubt was given in answer to a question framed appropriately in cross-examination) the extent of the Company's agreement was merely that Mr Brown, the Defendant, himself had agreed with himself as Director, and that the Company as such never should be taken as having accented the arrangements Mr Brown was seeking to make. In order to dispose of that matter at once, I am quite satisfied that that is not so.
Mr Brown senior gave evidence, and from his evidence it is quite plain that he was fully aware of what his son was proposing and doing; that he, controlling the Company, fully authorised the Company's participation in what followed and assented to it, and therefore assumed for the Company all the consequences that could naturally and properly flow.
From the passages which I have read it will have been made plain that the garage, part of the building which was proposed and which was in fact executed and the north wall of which was to form the boundary, encroached somewhat upon the north plot. By that I mean this: If from a post which was actually on the site marking the extreme north-west corner, adjacent to Hamlet Road, of the southern plot a straight line were drawn back to the back line substantially parallel with the northern boundary, then the garage in one part of it went across that line to the extent of some 2 or 3 feet into the north plot. It is that which has given rise to the present action. We have been supplied with a plan prepared on the Plaintiff's behalf which illustrates graphically what I have said. Assuming that the boundary were to go along the north side of the garage, then it would proceed from Hamlet Road and form, not a single straight line, but two lines at an extremely obtuse angle, and to the extent of the part of the land which would lie between the obtuse angle and the straight line it is said now that the Plaintiff is entitled to relief. From the back of the garage, from the east side of the garage, I should add, there was also erected I think in part a wall but also a post-and-wire fence to the back of the plot and, as I have read from the finding of the Judge, it was the mutual intention of the Company and the Defendant Mr Brown (for I now shall treat them, having regard to what I have earlier said, as two quite independent persons) that thenceforth the garage wall and the fence should be and constitute the actual boundary between their plots. At the same time, as this building operation occurred, another operation of a somewhat different character also took place. In order, as I understand, to save the expense of having two pipes or drains from the two plots of land, or from any houses built on them, to the road, the idea was conceived of putting a manhole on the north plot — that is the Company's plot — bringing to the manhole, by means of an underground drain, the water which would collect on or flow from the newly-erected premises of Mr Brown the Defendant, and then, as the plan indicates, the water would flow from the manhole to the road but by a route which re-crossed the boundary and went under the Defendant's land; and the scheme was that the manhole should also collect in due course of time water from the north laid, the Company's land, so that there would from the manhole be one outflow to the main drain in the road serving both properties, a sensible and economical arrangement.
So matters stood when, on the 29th April, 1952, the Company proceeded to dispose of its still vacant plot to Mr Lister. The evidence given by Mr Brown (and the Judge expressed the view that he was a witness of care and reliability) was that Lister came and inspected the property. He said: "I should he perfectly prepared to hold" — I am reading from the Judgment, page 10 –
"as a question of fact -if indeed it were relevant - that the Company never intended in the minds of their officers to convey anything more than what they had enjoyed. Indeed, as I have already said, they had always considered what I have called the actual boundary as representing the true boundary. Mr Lister was not called, but the Defendant gave evidence, which I accept, that he (Lister) visited the site before he purchased, and that he saw or could see just where the actual boundary lay".
Unfortunately, at that stage it appears that no thought was given to verifying the position of the boundary, and the conveyance to Lister (whatever may have been intended) was expressed in the following form, so far as relevant: After reciting that the north plot was still vacant land, the parcels were described as
"All that piece of land situate in the Parish of Romford in the County of Essex part of the land known as the Havering Park Estate and abutting upon the south-east side of a road known as Hamlet Road which said Piece of land has the several dimensions following, namely".
There then followed an exact repetition of the dimensions mentioned in the 1932 conveyance of the north plot and there followed a similar reference to the numbers on the Park Estate plan, and the description concluded again, echoing the language of the earlier Deed, "and for the purposes of facilitating identification only is delineated and shown by the colour pink on the plan drawn on" the 1932 conveyance, Ansell to Turner. It is, of course, elementary that the mutual intentions of the parties to a Deed cannot override or distort its language, though they may give rise to the right of one or other of them to have that language rectified. I will not, however, for the moment pause to express any view of the meaning of that conveyance. It is obvious that if, according to its true effect and construction, all that that conveyance was apt to convey to Lister was the land in fact lying to the north of the garage wall and the post-and-wire fence, then that was all Lister had when he in due turn case to sell shortly thereafter in the same year to the Plaintiff. It appears, indeed, that Lister bought as what is sometimes called a speculation for the purpose of re-selling (at a profit, I expect) to the Plaintiff or to some other purchaser. At any rate, in November of 1952 the Plaintiff did buy the same plot from Lister that he (Lister) had bought. The language of the conveyance to the Plaintiff was, so far as is relevant, identical with that which I have already read from in the conveyance from the Company to Lister. It appears that the Plaintiff also bought for a cash consideration some plan of a bungalow and he proceeded in due course to build his bungalow.
At the beginning of my Judgment I expressed some regret that the unhappy position in which two people find themselves, at the end of four days of trial, in the Court of Appeal was in some measure due to want of good advice, and it is at this point, most unhappily (as I think) for Mr Hopgood, that he never was advised as to the precise dimensions which the surface of the ground appeared to show as comprised within his plot and the dimensions which, according to the various plans, ought to have been shown; but when he proceeded with his bungalow (and he seems to have proceeded to a very advanced stage before he realised what the effect was) he discovered that the small projection which I have attempted to describe, made by the Defendant's garage, operated so that there was no passage between the southern part of the Plaintiff's bungalow and the boundary sufficient to enable the Plaintiff to get a motor car through it and garage the motor car at the back of the plot. That no doubt would be a substantial disappointment, to say the least, to the Plaintiff; and, as a result, he discovered then the divergence from the area as shown on the 1932 plan, on the footing that the southern boundary of his plot was a straight line parallel or substantially parallel with the northern boundary. That it is not quite parallel is obvious from the fact that the eastern boundary is shorter than the road frontage, but the regularity of the design, I have already indicated, is apparent, and the position of the Defendant's garage was inconsistent, and shown to the Plaintiff to be inconsistent, with the natural inferences from the plan.
In the end, after (unhappily) an attempt — and I should have thought, if I may say so, a laudable and by no means ungenerous attempt — on the part of the Defendant had been made to assist the Plaintiff, the present action was begun. It was stated to be an action for trespass, but, as Mr Holdsworth pointed out, it nay be that more correctly it should be described as an action for ejectment. In the prayer of the claim, the Plaintiff sought not only to have it declared that, to the extent I have indicated, the southern plot and the buildings on it had encroached on the northern plot, but the Plaintiff sought also by injunctions in effect to cause the encroachments to be removed and the Defendant to depart from that part of the Plaintiff's territory that he had wrongfully occupied; but, during the course of the trial, Mr Lester for the Plaintiff made it quite clear that he no longer sought any injunctions at all. He confined himself to seeking a declaration as to the position of the boundary and a sum of damages, being damages suffered up to date, estimated in the claim at the figure of £19. Those circumstances are not irrelevant when I come to consider the subject of the cross-appeal here; but another matter had also emerged in connection with the manhole to which I have already briefly alluded. I shall defer for the moment further stating the facts. All I need now say is that the Plaintiff also claimed that the Defendant had trespassed upon the Plaintiff's land, according to the claim, by putting thereon a manhole and drains. As will later appear, that is not in truth his claim at all. The claim — and on this he succeeded — was that he had wrongfully allowed water from his land to pass by an underground drain on the Plaintiff's land to the Plaintiff's manhole. That, indeed, is plainly a trifling matter of itself, as the Judge held, and I think no doubt would never have been the subject of any litigation had it not been that, as does inevitably happen with all human beings when they quarrel, every possible item of dispute is brought into play. On those claims the learned Judge held, first, that the conveyances (and particularly the conveyance from the Company to Lister), upon their true construction, conveyed the whole of the property, the north plot, which had been the subject of the 1932 conveyance; that is to say, that they were apt to convey and did convey that area which I have described as lying between the obtuse angle and the straight line. But the learned Judge held that, in the circumstances which I have described, at the time when Mr Brown built his bungalow, the Company and its successors in title, including the Plaintiff, were estopped from so asserting and from asserting that the boundary was at any other position than was shown on the ground by the garage wall and the fence. That part, the main part, of the Plaintiff's claim, therefore failed; but, as regards the manhole, he came to the conclusion that the right which the Defendant had at one time enjoyed to discharge his water by the underground channel into the Plaintiff's manhole was the subject of a revocable licence, that that revocable licence had been revoked in fact, and, though he declined to give any other remedy, he awarded the Plaintiff, in respect of that matter of complaint, the contemptuous sum of one shilling for damages. The result of the two days' trial was, therefore, an Order, commendably brief in form, which said that the Plaintiff should recover from the Defendant one shilling in damages, but made no other Order as to costs or otherwise. From that Judgment the Plaintiff has appealed and the Defendant has cross-appealed.
Upon the main question, I must say that the conclusion at which the Judge arrived, the broad conclusion, namely, that the Plaintiff failed, would appear to me to have all the commendation which common sense and the realities of the case can give it, and a conclusion that at this time and after all that has occurred the boundary is to be treated for all practical purposes as being along the line shown on the plan, with the result that, apart from Mr Lester's concession, as a matter of strict right the Plaintiff could require the removal of the garage or part of it and of the fence, would appear hardly comprehensible, I should have thought, to anybody but a lawyer. But as Lord Worton observed in the passage which I have already quoted, these apparently simple, even trifling, questions have an unhappy knack of giving rise to most difficult questions. The first question is — and it has formed a part of the cross-appeal — whether the Judge was right to hold, as he did, that on the true construction of the Deeds there was conveyed to Lister and by Lister to the Plaintiff the whole area defined and also delineated on the 1932 conveyance of the northern plot. At page 11 of his Judgment, his Honour said:
"It seems to me that it would be a wrong method of construction to give to the parcels of the conveyance of April 29th, 1952"
— that is the conveyance from the Company to Lister —
"a different meaning from that of the parcels and earlier conveyance of June 22nd, 1932, and that the property conveyed by the former must have had the same boundaries as the property conveyed by the latter".
I have, for myself, been very much impressed by the forceful character of the argument in the other direction. A conveyance purports, on the face of it, to be a conveyance of a piece of land, of something real, of part of the surface of the earth and that which underlies it. It is therefore, as I understand it, legitimate to look at the physical facts, not for the purpose of distorting the language of the Dead, but for the better identification of that which the language describes. Here there is described a plot of land fronting on a road called Hamlet Road in Romford. If at the relevant date in 1952 an inspection had been made of the locus in quo it is plain, of course, that on the face of it the southern boundary of the plot then intended to be the subject of the Deed was marked on the surface of the earth by that which had been put upon it. But we are concerned, not with the intention of the parties, but with the words of the Deed, and I must therefore see what this Deed of April 1952 said. I will be, I hope, forgiven for reading again this oft-repeated but far too little checked, formula:
"All that piece of land situate in the Parish of Romford in the County of Essex part of the land known as the Havering Park Estate and abutting upon the south-east side of a road known as Hamlet Road which said piece of land has the several dimensions following, namely, a frontag to the said Hamlet Road of 40 feet or thereabouts a length along its north-east side of 173 feet or thereabouts and a width at its rear or south-east side of 30 feet or thereabouts and comprises the north-easterly portion of Plot No. 55 and the south-westerly portion of Plot Mo. 54 on the said Havering Park Estate".
If the description had stopped there (subject to the possible effect, about which we have heard no argument, of the reference to plots on the Havering Park Estate), I confess that, for my part, I should have thought it would be plain that the thing intended to be described was to be identified as that which on the surface of the earth was (inter alia) indicated and marked by the northern wall of the garage and the post-and-wire fence. There was no exact delineation of the vital boundary, the southern or south-western boundary.
The area is not stated and there is nothing, as a matter of words, which I should have thought, for my part, would have inclined a Court to hold that the thing conveyed was to be identified otherwise than by reference to what was to be found there on the site. But, of course, the parcels do not stop there. They proceed "and for the purposes of facilitating identification only is delineated and shown by the pink colour on the plan drawn on a conveyance dated", and then there is a reference to the Ansell-Turner conveyance of 1932, I do not, for my part, doubt that that reference is at least a strong indication to the reader of the 1952 Deed that the subject of the 1952 Deed was the same as the subject of the 1932 Deed; but is that inference from the language so compelling as to govern the matter to the exclusion of the facts to be discerned from looking at the land? Mr Holdsworth, in what to me was a very forceful and persuasive argument, drew attention in this respect to the difference between the language in this case and that which had come for the determination of Lord Morton (Mr Justice Morton, as he then was) in the case of Wallington v. Townsend, to which I have already referred; for in the latter case, where the problem was of a similar mature, the wording of the conveyance which fell to be construed had contained this very different formula, "as the same is more particularly delineated on the plan annexed hereto and thereon coloured pink". The learned Judge stated that the view which he felt compelled to adopt was one which he would not adopt unless the words were so strong that he felt himself judicially incapable of resisting their proper inference, and he thought that those words which I have just read were too strong.
"I find myself", ha said, "unable to come to any conclusion other than that, on the true construction of the contract, the disputed strip is included in the land which is sold".
As will have been observed from what I have just read, that was a case of contract, where it might perhaps have been thought that there was less compulsion than in the ease of a conveyance, and I do not minimise the effect that must be given to the circumstance that we are dealing with of the completed Deed, a conveyance. Still, as I have already indicated, I have found, for my part, great force, great persuasiveness, in the argument of Mr Holdsworth that this somewhat imprecise and certainly very different language from that in Wallington v. Townsend is not of so compelling a character that one should conclude, as a matter of construction, that the area conveyed in 1952 must be the same as the area indicated in the 1932 Deed and that the former is to be regarded as comprehending a strip bounded on the south side by an absolutely straight line.
I have earlier said that the problem is very difficult, and one thing is quite plain, that when you have a building estate divided as this one is, clearly the plots shown on the plan are intended to be regular and uniform. But I have felt much strength in the submission that, although the words I have read are plainly apt to describe the original subject-matter of the 1932 Deed, they are also equally apt to describe a plot of land which is to some extent (I think it is a matter of decree, and I would therefore say a small extent) different from the original as a result of some slight differences on the surface. I gave during the argument an example. If, in making up Hamlet Road for public use, some small piece at a corner or along the front had been taken from or added to the area originally intended as the north plot, I should myself have been strongly inclined to suppose that the description which I have read was apt, upon its fair reading, to describe the slightly altered configuration of that which was in substance the same plot. But my two brothers do not take that view. They take the view which the learned Judge expressed that, as a matter of construction, the Lister Deed must be taken to have conveyed the same thing, the same property, as had the 1932 Deed, and they indicate that a contrary view (tempting though it is, because in line with the manifest intention of both parties) is to yield to distortion of the language in order to try to give effect to intention, a thing which in itself is not, of course, legitimate. Having regard to the view they take, I do not, therefore, propose to express any conclusion of my own upon this part of the case.
I turn to the question of estoppel, upon which (as I have earlier said) the learned Judge found in favour of the Defendant. I have already disposed of the point taken in reply by Mr Lester that the position of Mr Brown as the individual owner of the south plot and as a Director of the Company which owned the north plot somehow or another qualifies the natural consequences which would flow from activities otherwise to be attributed to the Company. Mr Lester also maintained that the conclusion based on estoppel was erroneous because of the absence of what he said was an essential element in a case of estoppel of this kind, namely, knowledge by the party alleged to be estopped of that party's true right. Mr Lester referred us to the formulation of requisites in the class of case with which he was dealing by Mr Justice Fry in the well-known case of Willmott v. Barber, 15 Chancery Division, at page 105, In my judgment, the formulation which I have stated was addressed to and limited to cases where the party is alleged to be estopped by acquiescence and is not intended to be a comprehensive formulation of the necessary requisites of any case of estoppel by representation. The doctrine of such estoppel, which is really a rule of evidence, is to be found in many circumstances and is of a much more general character, in Spencer Bower's book on estoppel, at pages 9 and 10, I find a statement of the governing principle which I am content, for the purposes of this judgment, to adopt as accurate:
"From a careful scrutiny and collation of the various judicial pronouncements on the subject, of which no single one is, or was perhaps intended to be, quite adequate"
- I think the learned writer is using the word "adequate" as meaning "exhaustive" —
"the following general statement of the doctrine of estoppel by representation emerges: where one person (the Representor') has made a representation to another person ('the representee') in words, or by acts or conduct, or (being under a duty to the representee to speak or act) by silence or inaction, with the intention (actual or presumptive), and with the result, of inducing the representee on the faith of such representation to alter his position to his detriment, the representor, in any litigation which may afterwards take place between him and the representee, is estopped, as against the representee, from making, or attempting to establish by evidence, any averment substantially at variance with his former representation, if the representee at the proper time, and in the proper manner, objects thereto".
I have already stated (and I hope sufficiently) what actually occurred; and, in my judgment, there was, beyond a paradventure, a representation by the Company to Mr Brown having all the qualities which Mr Spencer Bower enumerated and therefore having all its consequences. In effect, and by way of paraphrase only, Mr Brown was saying, was he not, to his Northern neighbour, the company:
"Our boundary shown on the small plan has never been marked out on the land. I want to build a bungalow and a garage. I have made plans and I believe that the boundary goes as it is shown on my plans. I want to build accordingly. It may be that I take a little bit of your land of that you take a little bit of mine, or both, but do you assent to the boundary being so assumed and fixed?"
and the Company said:
"Yea, we do. What is more, we will assist you to carry out your purpose and build for you at your coat your house and garage".
I think it may well be, if it were necessary and matters had turned out otherwise, that this would be a case of mutual representations of fact made with the intention that they should be acted upon, and acted upon in fact; but in the present case I am only concerned with the Company and, as I have already said, in my judgment, it is quite clear that the Company then represented that the position of the boundary was where Mr Brown had shown he thought it ought to go. Is it really suggested (for this must, I take it, follow from an argument to the contrary) that the Company, having assented to what had bean proposed, having participated in what followed, and having taken the aunt of £2,200 from Mr Brown for building the garage and his house in the places which he had identified, could then turn round the next day and tell Mr Brown that, having now measured the plot more accurately, he must take down that part of the garage which encroached upon the Company's land and which they had just built at his entire expense? It seems to me that such a suggestion would indeed shock common sense and the realities of the case.
If that is right, the only other question is whether the disability on the Company's part from averring the boundary to be in any other place than that where they, with Mr Brown, had put it, is equally binding upon the Plaintiff, in my judgment, that can also be answered clearly in favour of the Defendant; and I accept the passage which Mr Holdsworth read from the Judgment of Chief Justice Mansfield in Taylor.v. Needham. 2 Taunton, page 278, at page 282. It was a cace of estoppel between lessor and lessee, but the principle is the same. The learned Chief Juatice aaid:
"Then the question comes, whether the assignee of the lease may be allowed to controvert the title of the lessor, when the lessee, under whom he derives, could not controvert the title of the lessor; so that the assignee should have a better right than he from whom he derives it. Exclusive of all the dicta, it would be a very odd thing in the law of any country, if A. could take, by any form of conveyance, a greater or better right than he had who conveys it to him; it would be contrary to all principle. But it does not rest merely on the general principle; for if yon look into all the books upon estoppel, you find it laid down, that parties and privies are estopped, and he who takes an estate under a deed, is privy in estate, and therefore never can be in a better Situation than he from whom he takes it."
My conclusion, therefore, upon this matter — that is, upon the appeal — is that Mr Lester has failed to satisfy me that there are any good grounds for differing from the Judge's conclusion.
I now come to the vexed but trivial matter of the manhole. The facts are not perhaps entirely clear, but I think I have accurately apprehended them and that they are as follows; When the Plaintiff began, or his builder on his behalf began, to erect his bungalow on his (the north) land, the manhole which was under the surface soil same to light and was found to be in a position inconvenient for and unsuitable to the position of the bungalow. The builder then appears to have communicated both with the Plaintiff and the Defendant. It had become clear to the builder (and, through him, to the Plaintiff) that there was being led into the manhole an underground drain from the Defendant's land, and the builder wondered what he had better do. The manhole's position was to be altered, and what had he better do about the drain? The Plaintiff made the rather foolish answer, if he will allow me to say so, that he refused to take any authority about it at all. But, as I have said, at that time emotion had somewhat clouded judgment, as happens often enough. In any ease, what in fact was done was that the builder moved the manhole to a more suitable situation and then reconnected the drain leading surface water from the Defendant's land into the manhole at its new petition. What exactly happened as regards the outflow is not so clear, but from the Plan No.11, to which I have already alluded and which was prepared by the Plaintiff's surveyors, it appears clearly enough that the outflow did go back again on to the Defendant's land, and I infer (and the facts, I should have thought, particularly since the onus in this matter is upon the plaintiff, fully justify the inference) that the substantial result remained that the manhole served the discharge from both plots and that discharge was taken from the manhole into an outflow across the Defendant's land into the main drain or sewer in Hamlet Road. I have said that in the prayer of the claim the Plaintiff sought to say that the wrong of which he complained was the putting or building upon the Plaintiff's land of a manhole and a drain, but it became quite clear that the real cause of complaint was (technical though it be) something in the nature of a nuisance rather than a trespass, namely, the discharge through an underground drain on to the plaintiff's land of water from the Defendant's land, and I have said that in respect of that wrong the Judge, who found in the Plaintiff's favour, awarded the contemptuous figure of twelve pennies of damage.
Now, the Judge's conclusion was to this effect, that although at the time when these arrangements for underground drainage were originally made something in the nature of an equitable easement came into existence, failure to register that had the result that the Defendant's rights were not hinding upon the Plaintiff. The Judge went on, however, to say that the effect of the re-connection with the drain was that the Defendant had a licence to go on discharging until the licence was revoked and that that licence had bean revoked by a letter which is part of the correspondence. I have, with all respect, come to a different conclusion. I think the learned Judge omitted to take note of the fact (which I have stated and which I have inferred) that from the manhole the outflow taking both the Plaintiff's water and the Defendant's water came through an underground channel under the Defendant's land into the main drain. There was, therefore, something in the nature of mutual licences; and it seems to me, as a matter of plain justice and of law, that one who is enjoying one part of such reciprocal licences cannot at the same time purport to revoke the other part which imposes a burden on him. In other words, so long as the Defendant was taking the Plaintiff's water, or was liable to take it, through his drain under his land, the Plaintiff was not entitled to revoke or purport to revoke the licence which the Defendant had to discharge into the manhole of the plaintiff. In my judgment, therefore, the sum of one shilling should not have been awarded. There should have been no award, and this part of the plaintiff's claim, like the rest of it, should have been dismissed.
I now come to the last matter, which is that of the cross-appeal, and I regret that here again the question which we have to deal with is by no means easy. I am conscious of considerable sympathy, if I may may so, for both the unfortunate parties to this litigation, and I know full well that, whatever be the end of it, the costs which will fall upon one or other or both will be severe and will probably leave them both with a feeling that the battle hardly justified the costs which it involved. I have said that the Judge's Judgment awarded no costs to either aide on the claim or the counterclaim. I should perhaps have mentioned that the counterclaim was of this nature: The Defendant resisted the Plaintiff's claim on the main point, on the ground that, according to the Defendant, the true construction of the Deeds did not purport to convey or have the effect of conveying to the Plaintiff more than that portion of the land which lay to the north of the garage wall and fence, and he counterclaimed for a declaration that the boundary between the plaintiff's land and the Defendant's land was as he had set it out in his Defence; in other words, depended upon his view of the construction of the document. The decision want in favour of the Defendant, as I have said, not on the ground that the construction of the Deeds was as the Defendant claimed that they should be held to be, but en the ground that the Plaintiff was estopped from averring to the contrary; and that was a matter not pleaded in the Defence. The question of estoppel by representation was raised by the learned judge himself, but, having been raised, was treated as open, was not objected to by the Plaintiff, and indeed he had some time for cogitation, for fourteen days (I understand) elapsed between the first day of the hearing and the second. So it went to the conclusion, but the Judge, after hearing further argument, reached the conclusion which he did about costs for reasons which he has expressed in a letter addressed by him to the Associate of this Court. He says this:
"I rejected Mr Lester's argument" (namely, that he was entitled to the costs of the action, having recovered a shilling damages) "on the ground that the Plaintiff had not succeeded in the main object for which he had brought the case and had only recovered purely nominal damages of one shilling. On the other hand, it seemed to me that the Defendant had wrongly resisted liability upon the subsidiary issue of the manhole. He had failed upon the arguments put forward on the question of construction and, although he had succeeded upon the issue of estoppel, this matter had never been raised in his written Defence and the defendant had further failed to obtain any relief by the counterclaim."
The cross notice of appeal asked for three things by way of variation of the Judgment, it first asked that the Judgment in favour of the Plaintiff on the manhole point should he reversed and the damages awarded struck out. It also complained of the dismissal of the Defendant's counterclaim, and that in the circumstances the Judge's decision to award no costs should be reviewed. It will have been observed from what I read that the first matter which the Judge took into account, in exercising the discretion which he did, was that the Plaintiff had succeeded and that the Defendant had wrongfully resisted liability, in respect of the manhole issue, subsidiary though in truth it was. Since, therefore, the first main matter upon which the Judge relied is now, if my view is right, not one which could have been taken into account in the way which the Judge records, it seems to me that the discretion must now be open and it is for this Court to decide anew (but bearing in mind, of course, what the judge has said) how the discretion should be exercised. I think the point that the estoppel defence was not in terms raised in the pleadings is net to be forgotten. All the same, the matter proceeded without objection throughout as though this question was open, and upon it the Plaintiff, who had to prove his case, eventually failed, and fails still. I add finally, as a material circumstance in the exercise of discretion, that the Plaintiff before the learned Judge (no doubt very wisely and properly) ceased to claim any injunction, and it is, I think, manifest that no Court, in the circumstances, would have granted an injunction. In all the circumstances, for my part I do not think it right that the Defendant should be wholly deprived of his costs at the hearing. It is true that his counterclaim in terms depended upon his view of construction and therefore, so far as his cross-appeal here is concerned, that part of it strictly must also fail, but it is an altogether negligible matter and upon his cross-appeal he succeeds both as regards the manhole and (as I have indicated) on the question of costs, giving the matter the best consideration I can, and bearing in wind all the tribulations of both these parties, I think the just course would be to direct that the Defendant should recover one half of his costs in the Court below, so far as this Court is concerned, subject to anything the learned Counsel may say, since the appeal fails and the cross-appeal substantially succeeds, I think Mr Holdsworth is entitled to his costs of the appeal and of the cross-appeal in this court.
LORD JUSTICE JENKINS: I agree that this appeal fails. The defence as pleaded was to the effect that, upon the true construction of the conveyances, the conveyance of the 18th November 1952 from Lister to the plaintiff conveyed to the Plaintiff only that area of land remaining on the footing that the wall which had been erected from the north-western extremity of the Plaintiff's frontage back to the garage which had also been erected, the northern wall of the garage itself, and eastward of that again the chicken-wire fence, constituted the southern boundary of the plot. On that footing, of course, there would have been no encroachment, the learned Judge rejected that contention and, in my opinion, he was right in rejecting it. The title to the northern plot begins with a conveyance of the 22nd June 1932 from Ansell to Turner, in that conveyance the property conveyed is described as having the several dimensions following. Then the frontage to Hamlet Road of 40 feet or thereabouts is given, the length along the north-east side of 40 feet or thereabouts is given, and finally the width at the rear or south-east side of 30 feet or thereabouts is given. The southern boundary la described only by saying that the property conveyed "Is adjoined on its south-west side by other land about to be conveyed by the vender to the purchaser", and the description concludes by saying that the premises are "for the purpose of facilitating identification only delineated and shewn by the pink colour on the plan drawn on these presents". The plan referred to shows coloured pink a somewhat elongated piece of land extending eastward from the then proposed Hamlet Road. It shows the frontage to that road of 40 feet, the depth on the north side of 173 feet, and the width at the rear of 30 feet. To the south it shows the plot bounded by what is, to all appearance, a straight line. Speaking for myself, I have no doubt that this conveyance must have operated, as the learned judge held, to convey a plot of land with three sides of the dimensions stated, and the fourth aide a straight line from the southern extremity of the plot's frontage to the proposed Hamlet Road to such a point as would give the stipulated width of 30 feet to the rear boundary of the plot. That the southern boundary should be anything else but straight seems to me an impossibility. If it was not straight, the whole matter as regards the parcels would be involved in complete uncertainty. It might be a wavy line, it might be a curved line, and no-one could tall how much land was being conveyed or what its shape or area might be. One therefore starts with a conveyance, as I think, of a plot with a straight southern boundary between the point I have mentioned. In every subsequent conveyance the same description in all material respects is used, and there is in each such conveyance a reference back to the same plan. It is true that the plan is referred to as being for the purpose of facilitating identification only, and therefore cannot control the parcels in the body of any of the Deeds. Nevertheless, the use of the same plan, I think, makes it clear beyond argument, firing regard to the repetition of precisely the same dimensions, that what was conveyed on each occasion, so far as the northern land was concerned, was precisely the same plot as was conveyed in 1932. Speaking for myself, I fail to see how the meaning of the language of the conveyance to the plaintiff can be affected by the circumstance that, before the conveyance to Lister, W. & M. Brown (Builders) Limited and the Defendant had made these allegedly encroaching erections. Accordingly, I am unable to take the same view as my Lord on this part of the case; for, to my mind, the learned Judge was clearly right in holding that this contention failed and that accordingly the low wall running back from the north-west corner of the Defendant's premises, and the northern portion of the garage to a width varying from 2 feet to about 5 feet, did encroach on the Plaintiff's land as conveyed to him by Lister.
That, however, does not conclude the matter; for the Defendant also relied on the doctrine of estoppel, the suggestion that this doctrine might be relevant here having fallen from the learned Judge in the course of the hearing. I will not take up time by repeating the reasons my Lord has given for his view on this aspect of the case; for, in my judgment, a clear ease of estoppel is made out, having regard to the circumstances in which the wall and the garage were erected. I think probably the most apposite statement of the rule regarding estoppel is the one to which the learned Judge himself referred, which is cited with approval by Mr Justice Simonds, as he then was, in the case of re William Porter & Company Limited, reported in 1937 2 All England Reports at page 361, the passage cited being from the Judgment of Lord Chancellor Campbell in the case of Cairncross v. Lorimer. I need not take up time by referring to the passage at length again, but I think it is in complete accord with the conclusion that the Company was estopped in this case. If the Company was estopped, it follows (as my Lord has said) that, on the principle stated in the case of Taylor v. Needham the Plaintiff as successor in title of the company can be in no better position. Accordingly, I agree that the appeal falls.
As to the trifling but somewhat difficult matter of the manhole, the story seems to have been this: when the Defendant was building his bungalow, some means had to be devised for carrying rain water off from his building. When the northern land also was built upon, which no doubt was plainly contemplated at that tine, it would be necessary for a similar provision to be made for the rain water from the building on that plot also. In these circumstances, by agreement between the Defendant and the Company, a manhole was installed on the Company's land and it was connected by means of a pipe to the appropriate gutters or other means of conveying water on the Defendant's land. As explained by the Defendant's father, it was necessary that the water collecting in this manhole should be carried off to the main sewer. That would involve not only laying a pipe from the Manhole to the road, but taking up the road for the purpose of waking connection with the sewer. That no doubt would be a laborious and somewhat expensive matter, and this arrangement had the advantage of avoiding the duplication of that operation, for one connection was made between the manhole I have mentioned and the main sewer, coming back across the Defendant's land for that purpose, with the result that if and when an additional connection for carrying rain water from the Company's property had to be made, the one exit to the main sewer would serve both. It appears that when the plaintiff's objection to the presence of the manhole was raised, his builder removed the old manhole and substituted another, but, as I understand the evidence, the pipe from the plaintiff's premises was re-connected and connection was also made with the main sewer by means of the existing pipe which had been led across the Defendant's property. There is no suggestion in the evidence that this means of connection with the main sewer was abandoned or that any new means of connection was provided. The plaintiff in his evidence said:
"I don't know if water from this manhole flows back on the Defendant's land. His manhole was too high to take my surface water away. It may be that my water runs across his land."
I think, as the evidence stands, it is a fair inference that the water from the existing manhole is still flowing across the Defendant's land by means of the pipe laid in his ground.
In those circumstances, as my Lord has pointed out, the position is this; The original manhole was laid under a reciprocal arrangement whereby the Company was to receive the Defendant's rain water and collect it in a manhole on the Company's property, the Company was to be at liberty to make a further connection to that manhole, and connection between the manhole and the main sewer would be made for the benefit of both parties by means of a pipe running across the Defendant's land. I think it is a fair inference on the evidence that, although a fresh manhole was substituted, the existing system of pipes, in conjunction with the new manhole, continued to perform the function contemplated at the time of the original installation.
That being so, I agree with my Lord that it is not open to the Plaintiff to object to the Defendant's pipes or the flew of water through the Defendant's pipes on to his land as constituting a trespass, inasmuch as this is part of a reciprocal arrangement of which the Plaintiff still has the benefit in the shape of the flow of water allowed to him through the pipe going back on to the Defendant's land, across that land, and into the main sewer in the roadway outside.
Accordingly, in my view, the appeal fails and the cross-appeal should be allowed, with the consequences my Lord has indicated.
LORD JUSTICE MORRIS: In my judgment, it has first to be considered what land is referred to and denoted in the conveyance to the Plaintiff of the plot which he bought. The conveyance was made on the 18th November 1952, the vendor being one Lister. The land which was conveyed was described as follows: As my Lord, the Master of the Rolls, has read the words in full, I do not pause to read them again. They begin with the words "All that piece of land situate in the Pariah of Romford in the County of Essex part of the land known as the Havering Park Estate" and they end with the words "and for the purposes of facilitating identification only is delineated and shown by the colour pink on the plan drawn on the conveyance dated the 22nd day of June 1932 made between Allen Ansell of the one part and Cyril Regent Turner of the other part. A perusal of the conveyance so referred to -- that is the conveyance from Ansell to Turner — shows that the plot of land was there described in almost identical terms. In the earlier conveyance the reference is to a proposed road intended to be called Hamlet Road. The words of description and limitation which are used thus contain three measurements, namely, those of the frontage to Hamlet Road, the length of the north-east aide and the width at the rear. The plan is to be looked at in order to assist in identifying the plot of land, if the plan is so used, there is nothing which suggests that the lines of the boundaries connecting the frontage to Hamlet Read with the rear are other than straight. That they should be so would, in my judgment, be the natural supposition and inference.
Following upon the conveyance of the 22nd June 1932 from Ansell to Turner, the land was on the 2nd June 1938 conveyed by Turner to Walker. Reference was made to the plan on the conveyance of the 22nd June 1938. On the 18th June 1949 Walker conveyed the plot to Walter & Maurice Brown (Builders) Limited. The land was described substantially as it was in the 1932 conveyance. On the 29th April 1952 Walter and Maurice Brown (Builders) Limited conveyed the plot to Lister, and again the description was substantially as it was in the 1932 conveyance. By this date the Defendant Brown had built on his plot and had in fact encroached to some extent on the plot which belonged to Walter & Maurice Brown (Builders) Limited, but, in spite of this, the Company in executing its conveyance described the plot in almost identical terms with those employed in the conveyance of the 13th July 1949 from Walker to the Company, which were substantially the same as those employed in the 1932 conveyance.
In view of all those circumstances, I have formed the conclusion that, as a matter of construction, the plot which was conveyed to the plaintiff was the same plot as was described in the 1932 conveyance and that its boundaries in length followed straight and direct lines. It follows from this view that, unless precluded from so doing, the Plaintiff can complain of the presence on his land of some part of the Defendant's garage and of the low wall. In considering whether the plaintiff can so complain, it has first to be decided whether the Company, Walter & Maurice Brown (Builders) Limited, could, in the period just before they sold the plot to Lister on the 29th April 1952, have made complaint. In my judgment, they could not. The Company accepted the instructions of the Defendant Brown to build for him in his plot. There was then no marked-out boundary between the two plots. The Company acted both through the Defendant and also through his father, who held the majority of shares in the Company. The bungalow and garage of the Defendant Brown were built, and the Company received payment. There was no intention of ceding any land from the Company to the Defendant Brown and the latter had no intention of encroaching over his boundary. The Defendant's father said in evidence that he intended to build only on the land of the Defendant. The Defendant said:
"The brick wall was pat up intending it for the boundary between my property and the Company's. It was so understood by me in my capacity as owner of the south property and as Director of the Company owning the north property".
If the Company, acting through its agents, had said in terms to the Defendant Brown that they recognised that there were no visible boundaries between the two plots and appreciated that the Defendant wished to have an assurance that he could safely proceed to build in accordance with his projected plans without being in danger of being accused by the Company of encroaching on their land, and that they were willing to give such an assurance, I cannot conceive that after the Defendant had relied on such assurance and paid the Company for building according to plan, the Company could subsequently have complained that the Defendant was trespassing on their land. The Company would be estopped though the Company did not make express statements in the terms which I have mentioned, they did, in my judgment, by their conduct impliedly represent that the Defendant could safely proceed to build as he planned, and the Company would, in my judgment, at a later date have been estopped from alleging that the Defendant had done wrong and was trespassing on their land. If this would have been the position of the Company, would Lister have been and is the Plaintiff better placed? In my judgment, the answer is No. The judgment of Chief Justice Mansfield in Taylor v. Needham (2 Taunton, page 278) is, in my judgment, clear authority for this view. I therefore consider that, as regards these matters, the appeal, against the Judgment of the learned Judge fails.
In regard to all the other matters relating to the issues of the manhole and the drains, and the issues in relation to costs, I do not desire to add anything to what my Lords have said beyond to say that I am in agreement with the conclusions that they have expressed.
Order: Appeal dismissed with costs; Cross-appeal allowed with costs, setting aside the Judgment for damages; Defendant to recover one-half of his costs in the County Court on Scale 3; Defendant's costs of the appeal and the cross-appeal to be taxed, as between Solicitor and client, in accordance with the Schedule to the Legal Aid and Advice Act.
