England and Wales Land Registry Adjudicator

 

REF/2007/0810

 

 

The Adjudicator to Her majesty’s Land Registry

LAND Registration act 2002

 

IN the matter of a reference from hm land registry

 

 

BETWEEN

 

CAROL ANN KEY-FORRESTAL

 

APPLICANT

 

and

 

CHRISTOPHER HOUSEMAN

AMANDA JANE HOUSEMAN

 

RESPONDENTS

 

 

Property Address: Merryvale, Cass Lane, Knaresborough HG5 8JZ

 

Title Number: NYK187817

 

 

Before: Mr Rhys sitting as Deputy Adjudicator to HM Land Registry

 

 

Sitting at: Field House Breams Buildings London EC4

 

On: Wednesday 2^nd July 2008

 

 

Applicant representation: In person

Respondent representation: Mr Houseman in person

 

 

DECISION

 

KEYWORDS – Accretion and diluvion – natural alteration of course of stream – alteration of registered boundary to reflect that change

 

Authorities referred to:

 

Boundaries and Easements by Colin Sara (2^nd edition)

 

 

 

1. On 27^th February 2007 the Applicant applied to the Land Registry in Form AP1 to alter the register in respect of Title No NYK187817. This title is a property known as Merryvale, Cass Lane, Knaresborough HG5 8JZ (“Merryvale”), first registered on 26^th February 1997. Title was based on a Conveyance dated 5^th January 1956 from Garside and Lord (1) to Lord and Lord (2) (“the 1956 Conveyance”). The Land Registry’s Case Summary states as follows:

“The red edging on the title plan was prepared in accordance with the extent shown on the conveyance dated 5^th January 1956, which showed the southerly boundary of the land conveyed as being a beck. By 1997 when the property was first registered the beck had altered its course from the position shown in the 1956 conveyance (and from the position shown on historical OS detail from that period).

The Applicant has applied for the alteration of the title plans for NYK187817 and NYK239398 under paragraph 5 of Schedule 4 to the Land Registration Act 2002 to update title plans for each title to show the boundary between the titles as following the current course of the stream and that, as the stream has naturally altered its course over the years, the boundary has moved under the principle of accretion and diluvion.

Notice of the application was served on the Objectors as the registered proprietors of NYK239398. The Objectors have objected to the alteration of NYK187817 and NYK239398 on the grounds that the boundary of the stream has not moved naturally but as a result of human intervention, and that the principle of accretion and diluvion does not apply.”

2. The dispute identified by the Case Summary, therefore, is whether the principle of accretion and diluvion applies or not. I have not seen all the exchanges between the Land Registry, the Applicant and the Objector, leading to the referral to the Adjudicator on 21^st June 2007. I have however seen the AP1 itself, dated 27^th February 2007, which states “I have full possessionary title of the stream & the stream meanders & has never changed its course”. I have seen the letter of objection dated 30^th March 2007 – this reiterates the objections made in an earlier letter, dated 9^th November 2006. I have not seen that letter. However, I understand that there was a previous identical application by the Applicant, subsequently abandoned, and I can only assume that the Land Registry’s Case Summary reflects the issues which were raised on that earlier occasion. However, the material I have seen for this adjudication does not deal directly with the legal issue of accretion and diluvion.

 

3. The physical features of the land are as follows. Merryvale is to the south of Cass Lane, and lies on the north side of a stream known as Holbeck. The Respondents are the registered proprietors of a smallholding adjoining Three Gates, Forest Moor Road, Knaresborough (“the Respondent’s Land”). This land lies to the west of Merryvale – indeed part of Cass Lane itself falls within the title – and to the south side of Holbeck. The Respondent’s Land is registered under Title Number NYK239398. According to the Case Summary, therefore, the dispute concerns the line of the boundary between the two registered titles. The boundary line shown on the filed plans does not coincide with the present course of Holbeck. The question raised in the Case Summary, therefore, is whether the filed plans relating to both titles should reflect the existing line of the beck, or whether they should continue to reflect the historical position of Holbeck. The Case Summary makes it clear that the line of Holbeck had changed between 1956 – the date of the original conveyance of Merryvale – and 1997, when the title first became registered. The plan attached to the 1956 Conveyance shows beyond doubt that Holbeck was the intended boundary feature between the land sold and the land retained by the common vendor. However, by the time that Merryvale became first registered at HM Land Registry (some 41 years after the 1956 Conveyance) the line of Holbeck had shifted. Nevertheless, the Land Registry decided to use the historic line of Holbeck as the registered boundary, even though this was not reflected by the line of the actual feature existing on the ground in 1997. The same applied when the Respondent’s title was first registered.

 

4. When the matter came before me for hearing, neither party was legally represented. Miss Key presented her case to me as best she could. However, she had no real appreciation of the legal issues, and was evidently in a very emotional state which did not assist me in understanding the way she put her case. As I understood her case, and her evidence, it was to this effect: when she bought Merryvale in 1997 Holbeck was in the same position as it now occupies. She raised with her solicitors and with her vendor, Mrs Jean Lord, the precise line of the boundary. This may have been because when she arrived she found that Mr Hare, the Respondents’ predecessor in title, had erected a fence on the Merryvale side of the stream. She told me that she believed that this had been done to prevent Mr Hare’s animals from entering the orchard on Merryvale: this is what Mrs Lord had informed her. According to her, she attended a meeting on site, at or around the time of her purchase, with Mrs Lord and Mr Hare, and possibly one or more solicitors. On this occasion it was agreed between the parties – including Mr Hare – that the centre line of the stream represented the true boundary between Merryvale and the Respondent’s Land. She went into occupation of the property before completion, some time in December 1996. Shortly after she arrived at the property she removed Mr Hare’s fence. In 2006 Mr Houseman decided to erect a fence along the apparent line of the boundary between the two registered titles. Since the original line of Holbeck had shifted, part of this fence was erected on the Merryvale side of the stream. This gave rise to a series of altercations between Miss Key and Mr Houseman which has led to the application referred to me.

 

5. Mr Houseman, who represented himself and his wife, was not of course present on the land in 1996 or 1997, and the Respondents did not acquire the title until 2004. He was unable, therefore, to give any direct evidence as to what occurred in regard to the boundary when Ms Key acquired Merryvale in the late 1990s. However, he produced two statements from Mr Hare himself, dated 13^th January and 8^th February 2008. In the first statement he says that the boundary in 1971:

“2.……was approx 3 to 4 foot on opposite side of beck on Merryvale Stud side as per blue line on map

3. In approx 1973 the beck was fenced by myself to keep livestock out (pigs) of the beck on my side.

4. The original boundary fence was renewed in 1995 approx. Miss Key Forrestal moved in Christmas Eve 1997 and in the Spring of 1998 Miss Key Forestal removed all the fence claiming the land was hers.”

The attached plan shows the fence line some distance from the beck on the Merryvale side. In his second statement, Mr Hare denied that he ever agreed the boundary line with Mrs Key in 1996 or 1997, corrected his earlier statement by accepting that Ms Key bought Merryvale in December 1996, and added that the fence (on the Merryvale side of the beck) remained in position until removed by Ms Key in Spring 1997.

 

6. Miss Key also relied on other evidence. First, on a statement by Mrs Lord (her predecessor in title) which could be read as being to the effect that Mr Hare did meet with her and Miss Key on site after she had vacated Merryvale “to discuss the boundary divide and I confirm that the middle of the stream was finalised at (sic) between both parties and their acting Solicitors and my Solicitor was notified.” She also referred me to a letter dated 6^th December 1996, from Messrs Titley, Paver, Crow & Fedden, the solicitors who acted for Mrs Lord in the sale to Miss Key. They write:

“We advised Mrs Lord of your client’s request for a plan of the property with measurements and understand that our respective clients have now spoken at some length on the matter and indeed have walked the boundaries of the property together.”

 

7. The evidence is not in a very satisfactory state. Neither Mr Hare nor Mrs Lord were present to explain or be cross-examined on their statements. Miss Key gave evidence but was, as I have said, very over-wrought and not particularly coherent. Despite these limitations I do feel able to make certain findings of fact in regard to the events of 1996 and 1997. First, I accept that Mrs Lord and Miss Key did themselves discuss the true boundary line and Mrs Lord pointed out that the centre line of Holbeck was the southern boundary of Merryvale. However, I do not have sufficiently reliable evidence before me to be able to conclude that there was a binding boundary agreement between the relevant parties – including Mr Hare - in 1997. Secondly, that Mr Hare had erected a fence on the Merryvale side of the stream. Thirdly, that Miss Key removed this fence in early 1997. Fourthly, that Mr Hare did not object to this removal or seek to assert any title to the northern bank of the beck. From this I infer that he did accept that the centre line of the beck represented the true boundary, even if he did not directly participate in the discussions between Mrs Lord and Miss Key as to the boundary. On this point, I would note that neither filed plan shows any solid boundary feature other than Holbeck itself dividing the two properties. Although Mr Hare referred to a fence existing on site since 1971 this was not reflected in the mapping. It may well be that the fence was simply a rough fence designed to keep animals out of the beck, as he suggests in his first statement, and was never intended as a boundary marker. Certainly, no claim has been made by the Respondent to title to any part of the land to the north of Holbeck by virtue of adverse possession.

 

8. In the absence of any binding boundary agreement, the real issue in this case is whether the apparent shifting of the line of the beck has altered the legal boundary between the properties on either side, since the original sale in 1956. The legal principle applicable to this type of case is, as I have mentioned, accretion and diluvion. In “Boundaries and Easements” by Colin Sara (2^nd edition) the principle is explained at paragraphs 8.08 to 8.10 at pages 164 to 167. It is now settled law that where the line of a watercourse acts as a land boundary, and through a gradual and imperceptible process the course alters, then under normal circumstances the boundary of the riparian land alters with it. In other words, if the watercourse shifts so that land formerly on the opposite bank (or indeed under water) becomes joined to the other bank, the owner of that bank acquires title to it. Section 61(1) of the Land Registration Act 2002 expressly recognises that the principle of accretion and diluvion applies to registered titles: - “The fact that a registered estate is shown on the register as having a particular boundary does not affect the operation of accretion or diluvion”.

 

9. It has been argued that the principle does not apply where the change in course is caused by human actions, or indeed where it is not gradual and imperceptible. In fact, the Respondents in this case objected to the application on the sole ground that “the boundary of the stream has not moved naturally but as a result of human intervention, and that the principle of accretion and diluvion does not apply.” (see Case Summary). The rationale of this exception is, I think, to prevent a riparian owner from deliberately altering the course of a stream in order to acquire land from the other riparian owner. That makes perfect sense. However, there has been no evidence put forward to support this contention, other perhaps than Ms Key’s allegations that the pig farming operations on the Respondent’s Land have caused some fouling of the beck and a collapse of its banks. I have certainly heard no evidence to support the objection, at least as regards any alleged actions by Ms Key or her predecessors in title. All that is clear is that the course of the beck has altered, to a modest degree, between 1956 and the date of Merryvale’s first registration: this much appears from a comparison of the existing registered boundary with the line of the beck as shown on the proposed new title plan.

 

10. In the circumstances, I do not see why the principle of accretion and diluvion should not apply in this case. In my judgment, the change in course of Holbeck should be reflected in a change of the registered boundary between the two titles. I think that a refusal to do so would be an offence against common sense. As matters now stand, the Respondent believes himself justified in fencing off some land on the opposite (ie the Merryvale) side of the beck from his land. This is because he has fenced along the original line of Holbeck as shown on the filed plan. This however bears no relation to the obvious natural intended boundary feature, namely Holbeck itself. On this basis, if Holbeck shifts yet further to the south, Merryvale could end up with no access to the stream at all. In my view, the parties to the 1956 conveyance cannot possibly have intended that natural movement of the boundary feature should not lead to a corresponding change to the legal boundary. I shall therefore direct the Chief Land Registrar to give effect to the Applicant’s application dated 27^th February 2007, as if no objection had been made.

 

 

Dated this 17^th day of July 2008

 

 

 

 

 

 

By Order of The Adjudicator to HM Land Registry