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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Steward v Gallop & Anor [2010] EWCA Civ 823 (27 July 2010) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/823.html Cite as: [2011] 1 P & CR 17, [2010] EWCA Civ 823 |
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ON APPEAL FROM THE NEWPORT (IOW) COUNTY COURT
RECORDER CLAIRE MISKIN
7N100310
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE JACKSON
and
LOR D JUSTICE PATTEN
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WILLIAM EDWARD STEWARD |
Claimant Respondent |
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- and - |
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(1) HAROLD JAMES GALLOP (2) VICTORIA KATHRYN GALLOP |
Defendants Appellants |
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Tom Weekes (instructed by Roach Pittis) for the Respondent
Hearing date: 10 June 2010
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Crown Copyright ©
Lord Justice Lloyd:
Introduction
The adjoining parcels of land
The title to the respondent's land
The title to the appellants' land
"All that freehold cottage or tenement with the shed buildings land and premises belonging thereto situate adjoining to Apse Heath in the Parish of Newchurch in the Isle of Wight and then in the occupation of Thomas Creasy as tenant which said hereditaments formerly comprised two cottages or tenements and with the garden and orchard thereunto belonging were formerly in the respective occupations of Joseph Barnes (since deceased) his son the said William Barnes deceased and John Jeffrey".
"All that piece of freehold land with the cottage and other buildings erected thereon or on some part thereof known as Sunnybank situate near Apse Heath in the Parish of Newchurch in the Isle of Wight and which said piece of land comprises part of a field or close of land numbered 402 on the Ordnance Survey map of 1898 (second edition) of the said parish and with the abuttals boundaries and dimensions thereof is more particularly delineated in the plan drawn hereon and is thereon coloured pink."
Other old plans
The start of the dispute
The proceedings
The issues in the case
"Having a sufficient degree of physical custody and control to amount to factual possession in maintaining, cutting and clearing the land through trimming the hedge and clearing the ditch when no one else did so, or sought to do so or was able to do so."
i) Mr Steward asserted a boundary marked by the hedge either as a matter of his documentary title or by way of adverse possession, and put forward a line for the correct boundary which, so far as land then owned by Mr and Mrs Gallop was concerned, seems to have asserted only a modest encroachment, in the area where they had put up two sheds and the aviary, but it did run on the north side of the drainage ditch in the eastern part of the area in question.
ii) Mr and Mrs Gallop denied trespass, asserting that they had not gone further south than the line of the old post and wire fence which they said marked the boundary. Alternatively they asserted an adverse possession title, implicitly as far as the line of that fence. As a further alternative they put forward a different boundary line, farther south. They also relied on proprietary estoppel.
iii) In reply, Mr Steward asserted the limitation title already mentioned, extending to all, or to half of, the hedge, in case his contention as to the true boundary line were not accepted, and mentioned the ditch in passing, expressly (though, to me, confusingly) in support of that case.
The factual evidence
"We maintained our side of the hedge and the top of the hedge and the work was done with hand tools, staff hooks, bill hooks and rip hooks and the ditch was cleaned out with a four-grained fork.
From the early 1970's I arranged to have the work done by a contractor using a machine. The ditch and the hedge on the far side of the ditch continues to be maintained by hand."
The first reference to the ditch there is puzzling in itself, in the context of a case based on the hedge; the second – "on the far side of the ditch" - is all the more puzzling as it implies that the ditch is on the south side of the hedge.
"The ditch has always been present for as long as I can remember. The ditch initially started halfway along the position of where the shed is [on an exhibited plan] and extends 450 or 500 yards in an easterly direction and comes to an end at a garden in Ventnor Road. …
My grandfather, my father and myself have always treated this ditch as our own. I have carried out the annual maintenance to the ditch and if anything needed doing to the ditch I always did it. Nobody else carried out any work to the ditch.
I have always treated the hedge, bank and ditch as my own. I have always looked after it for myself and for my family … This land has always been in my family … I have never thought of this land as anything other than my own."
"There was only one ditch existed when Mr and Mrs Gallop purchased Thornbury and that is my boundary ditch which up until the end of the 1970's started at a point near to the eastern end of Mr and Mrs Gallop's aviary/shed. It slowly then got filled in by construction of a new tank at the end of the 1970's or possibly 1980's and it now starts at the out flow of Thornbury's tank (the new one) and carries on right through to the rear of properties in Ventnor Road. I would also add that in winter it is also a drainage ditch and also branches off for Princelett about half way. There is a ditch on the north side of the hedge that is my boundary ditch."
"I do not think that during our ownership we had any dealings with the adjoining farmer, whether about the boundary or trees or anything else. No point about the boundary ever arose and we had no occasion to consider the matter."
"when the ground looked much as it did in this photograph. I know from time to time this bramble hedge has been cut down and allowed to re-grow and I can only assume that that was done in 1982 by ourselves. I have only done this possibly two or three times in my life."
The expert evidence
The judgment
"Unhappily the conveyance dividing the two pieces of land on either side of the disputed boundary is no longer available. As a matter of law only actual deeds of partition between the two parcels of land are of real importance. See Sara on Boundaries and Easements (3rd Edition.) I accept the Claimant's submission that this makes sense, otherwise such a deed as is presented by the Defendants could be self-serving. The 1915 Deed of Partition is therefore what Sara describes as "other deeds" (see paragraphs 1.01 and 2.02). I therefore have to consider other topographical evidence."
"I accept the Claimant's evidence about the hedge. I have no doubt at all, and find as a fact that there was a substantial hedge in the position described by the Claimant, and that that must have been obvious to the Defendants, who cut down substantial parts of it for their own purposes."
"Mr Steer when he gave evidence denied all knowledge of planting conifers. I have to say that I found Mr Steer an unsatisfactory witness. He struck me as a man with a grievance against the Claimant apparently based on what he regarded as untrue statements made by the Claimant in these proceedings. He denied ever having met the Claimant, which I find frankly incredible, given that they were neighbours for a period of five years, even allowing for the fact that he was a seaman and therefore away for part of the time. I prefer the Claimant's evidence as to the planting of the conifers. I find that on a balance of probabilities the Steers did ask permission to plant some fir trees in the gap in the Claimant's hedge, and the Claimant gave them permission. It follows that the conifers were part of the Claimant's hedge. I also accept the point made by Mr Lofthouse in his Closing Skeleton Submissions that Mr Steer recoiled when asked whether he ever cut down the hedge. I think it is a correct inference to be drawn from his reaction that he regarded the hedge as nothing to do with him."
"The presence of the two drainage pipes suggests to me that on a balance of probabilities the outflow from the septic tank(s) was directed into the nearest existing ditch; i.e. the Claimant's. The Defendant's version of events, that Mr Aubrey Smith dug out the ditch seem to me to fit uneasily with the topography of the land on the ground and as depicted by Mrs Jacobs in her picture, to which I will refer later."
"It is the Claimant's case that the ditch continued up the picture beyond the outlet pipe and the white post to the west, for some way, although not as far as the Newport Road. The Claimant does not suggest that the west-running ditch was a functioning ditch, but that it eventually smoothed in to the bank, and becomes the mound which can be seen in the photograph I have been shown of the winter scene of the property. The Defendants deny that this is so. Assisted by the site view, I have no doubt that it did, as the Claimant says, continue up the photograph beyond where Mr Flux is standing. It looks to me from the photographs as though someone, probably the Defendant or someone on their behalf, has filled that part of the ditch in. My view reinforced by the second picture as 1 C1 showing a foxglove in the middle. This does not accord with the proposition that Mr Aubrey Smith and his father dug the ditch, because in that case it would start where the outlet pipe comes out. I accept the Claimant's evidence that there was always a ditch there which he kept clean and tidy, and which he regarded as his ditch."
"Further there is an inlet coming from the left into the ditch, which can also be seen in photograph C1 straddled by Mr Flux. I accept Mr Lofthouse's submission that whoever put that there believed they had the right to do so. Someone put it there to take water from the upper water table; i.e. the Claimant's land, to the east. This is consistent with the Claimant's ownership of the ditch, rather than the Defendants'."
"48. I accept Mr Lofthouse's submission that the right approach to this case is to look at what makes sense on the ground.
49. I find that the general lie of the land is as described by Mr Carter, which would mean that the hedge on the disputed boundary belongs to the Claimant as does the ditch on its far side. I find that the boundary between the two properties lies along the line contended for by the Claimant.
50. In view of my findings it is unnecessary for me to deal with the issue of adverse possession."
The grounds of appeal
i) The first is that the recorder erred in law or fact or both in her approach to the determination of the boundary. Under this head, Mr Morshead advanced a contention by reference to the effect of registration of the title to Thornbury, and he contended that she had misapplied the hedge and ditch presumption and that she wrongly rejected or misinterpreted the 1915 deed.
ii) Next it is said that she erred in her factual findings relating the acts of ownership and other matters relied on as to "what makes sense on the ground".
iii) The third ground is that the recorder did not deal with Mr and Mrs Gallop's defence under the Limitation Act.
iv) Lastly, it is said that the recorder appeared to be biased against Mr and Mrs Gallop. This ground is of a quite different nature from the others relied on, so I will leave it until later, and first deal with the arguments under the first three grounds of appeal.
The effect of registration of the title to Thornbury
"It is unfortunate that the conveyance to Mr Longstaff was not produced at the trial, but its terms will have been the basis for the first registration of the title to No 6 Further Granary Cottages on 17th September 1990. Accompanying the application for that registration there will have been "sufficient particulars, by plan or otherwise, to enable the land to be fully identified on the ordnance map": see Land Registration Rules 1925, rule 20. There will then have been made all those inquiries, searches and examinations as are prescribed by rules 25 to 35 before the title was registered. Accordingly, in my view the property register of title No NK 94208 is the best evidence of what was conveyed to Mr Longstaff. That refers to the file plan which, in accordance with Land Registration Rule 278, is not precise as to the boundaries. In these circumstances, it was and is essential to ascertain what physical features existed on the ground in 1990 capable of delineating the relevant boundary."
"Except in cases in which it is noted in the property register that the boundaries have been fixed, the filed plan shall be deemed to indicate the general boundaries only. In such cases the exact line of the boundary will be left undetermined – as for instance whether it includes a hedge or wall and ditch, or runs along the centre of a wall or fence, or its inner or outer face, or how far it runs within or beyond it; or whether or not the land registered includes the whole or any portion of an adjoining road or stream."
The relevance of the 1915 Deed
The ditch: the facts
The hedge and ditch presumption
"The rule about ditching is this. No man, making a ditch, can cut into his neighbour's soil, but usually he cuts it to the very extremity of his own land: he is of course bound to throw the soil which he digs out, upon his own land; and often, if he likes it, he plants a hedge on top of it."
The appellants' Limitation Act defence
Appearance of bias
Conclusions
Lord Justice Jackson
Lord Justice Patten