Alan Wibberley Building Ltd v Insley
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WARD,LORD JUSTICE JUDGE,LORD JUSTICE SIMON BROWN |
| Judgment Date | 12 November 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J1112-2 |
| Docket Number | No CCRTF 96/0813/C |
| Court | Court of Appeal (Civil Division) |
| Date | 12 November 1997 |
[1997] EWCA Civ J1112-2
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF MR RECORDER PARDOE
Royal Courts of Justice
Strand
London WC2
Lord Justice Simon Brown
Lord Justice Ward
Lord Justice Judge
No CCRTF 96/0813/C
MR I FOSTER (Instructed by Messrs Grindeys of Stoke-on-Trent, Staffordshire) appeared on behalf of the Appellant
MR C MACHIN (Instructed by Challinors & Dickson of Stoke-on-Trent, Staffordshire) appeared on behalf of the Respondent
This is a boundary dispute. To hear those words, "a boundary dispute", is to fill a judge even of the most stalwart and amiable disposition with deep foreboding since disputes between neighbours tend always to compel, as this one did, some unreasonable and extravagant display of unneighbourly behaviour which profits no one but the lawyers. Fortunately this appeal is different. Ably argued as it has been by both counsel, it crisply raises a point of law of some importance, especially in rural England and Wales. That question, for the moment quite broadly stated, is this: where adjoining fields are separated by a hedge and a ditch, who owns the ditch? The interest in the case springs from the possibility that there are not just two contenders, namely one or other of the owners of the contiguous fields, but a predecessor in title to one of them. To sharpen the focus of the issue before us, I must set the scene.
The scene is the village of Saverley Green somewhere in the depths of the Staffordshire countryside. For over 150 years of the history revealed to us, the Home Farm and the Saverley Green Farm were in separate ownership. The defendant now owns part of the original Home Farm; the plaintiff part of the original Saverley Green Farm. It was not in dispute that until removal of part of it by the defendant some time in or after 1987 there had been a hedge between those two farms. The judge found on the balance of probabilities that a ditch, as originally dug, ran the full length of that hedge and continued to exist until recently. The ditch and the hedge were likely to have been contemporaneously dug and planted. The ditch was on the Saverley Green side of the hedge.
The parties' title to their properties must be examined. By deed made in 1920, Home Farm was conveyed to a Mr Beard under this description of the parcels of land:-
"All that farmhouse buildings and land situated and known as Home Farm Saverley Green in the County of Stafford containing by admeasurement 47 acres or thereabouts…"
In 1975 Mr Beard sold to Mrs Burton. That conveyance was differently drafted and the difference is important. By that deed the vendor as beneficial owner conveyed unto the purchaser:-
All that the property more particularly described in the schedule hereto…
The schedule before referred to:
"All that messuage or farmhouse and outbuildings situated and known as Home Farm…together with the land forming the site thereof and used and occupied therewith which said property comprises in the whole 10.39 acres or thereabouts and is more particularly delineated for the purposes of identification only on the plan annexed hereto and thereon edge blue and is more particularly described as follows:-
| "O. S. No | Description | Acreage |
| 5455 | House/Buildings | 0.82 |
| 6246 | Pasture | 3.38 |
| 6751 | Ditto | 3.08 |
| 7336 | Ditto | 3.11 |
|
|
| 10.39" |
As would be expected and as was common ground the plans are an exact copy of the Ordnance Survey map showing the fields as numbered. Field 6751 adjoins Field 7751 which is part of the Saverley Green Farm. This is the boundary with which we are concerned.
The defendant owns Saverley Cottage which he acquired in 1978. It lies across the top of part of both fields with the disputed boundary between the fields forming the stem of the T. In 1985 he bought a tiny corner of the Home Farm field 6751 from Mrs Beard and for a length of 87 feet this addition to his garden adjoins the Plaintiff's field 7751. The terms of that conveyance are rightly agreed to be immaterial for present purposes.
As for the Saverley Green Farm, the plaintiff's predecessor in title took a conveyance in 1921 of:
"All that messuage farmhouse or tenement with the barns stables outbuildings and hereditaments thereto belonging called the Saverley Green Farm…formerly in the occupation of… Richard Harvey…and also all those several closes pieces or parcels of land … commonly known by the names and containing by admeasurement the several quantities hereinafter mentioned that is say …(there follow the names of a number of fields with their acreage.)…"
By a conveyance made in 1984 the plaintiff acquired:-
"All those plots pieces or parcels of land situate at Saverley Green in the County of Stafford and which are for the purposes of identification only delineated on the plan annexed hereto and thereon edged blue which said land was (with other property) conveyed…by a conveyance dated…1921…"
The plan appears to have been drawn to correspond to—but not to be an exact copy of—the Ordnance Plan and it shows Field 7751 forming the eastern boundary with Home Farm of the land thus conveyed.
The dispute arose because sometime in about 1987 the defendant scrubbed out the hedge dividing the two fields with which we are concerned and erected a wood post and wire fence along the old line of the far lip of the ditch and perhaps was beyond that line. The plaintiff alleged trespass and sought relief accordingly.
Mr Recorder Pardoe Q.C. found for the plaintiff and on 30th November 1995 declared the true line of the boundary between these properties, ordered the plaintiff to erect a fence along that line restrained both parties from entering the other's land and awarded the plaintiff damages of £900. The defendant appeals against that order.
The issue joined before the Recorder was whether or not, as the defendant contended, the boundary was fixed by application of the presumption that the person who dug the ditch dug it at the extremity his land and threw the soil onto his own land to make the bank on which the hedge was planted, or whether, as the plaintiff contended, that presumption did not arise where the land had been conveyed by reference to the Ordnance Survey map which delineated the boundary. The Recorder applied Fisher -v- Winch [1939] 1 K.B. 666 and Davey -v- Harrow Corporation [1958] 1 Q.B. 60 and held that:-
"The boundary of the land conveyed to Mrs Burton by the 1975 conveyance was the centre line of the hedge between fields 6751 and 7751. It follows that the boundary towards field 7751 of the part of field 6751 conveyed to the defendant by Mrs Burton in 1985 was similarly the centre line of the then existing hedge. The conveyance of (Saverely Green) Farm which was also by reference to OS Field numbers and acreages leads to a conclusion correlative to one I have just come to. I conclude that plaintiff's title extended similarly to the centre line of the hedge between fields 6751 and 7751."
The appeal was launched on the basis that the Recorder erred in not applying the hedge and ditch presumption, contending in the Notice of Appeal that Fisher -v- Winch did not apply as:-
"(i) In this case there had never been, an ownership in relation to the plaintiff's title and the defendant's title;
(ii) Prior to 5th February 1975 neither title had been conveyed by reference to Ordnance Survey maps or plans; and
(iii) The plaintiff's title has never been conveyed by reference to Ordnance Survey maps or plans."
When granting leave to appeal on 14th June 1996 Millett L.J. said this:-
"It seems to me that it is arguable that what follows is this:—First, prior to 1975 the mutual boundary was on the plaintiff's side of the ditch, the hedge and ditch belonging to the defendant's predecessor in title, since there was then nothing to exclude the presumption. Secondly, the hedge and ditch have never been conveyed to the plaintiff who has no paper title to them. Thirdly they were, no doubt inadvertently, excluded from the conveyance to the defendant's vendor. If that is right, then the paper title is still vested in the vendor of the 1975 conveyance to the defendant's vendor. One or other of the parties may have established title by adverse possession, but no issue as to this was before the Recorder. He was solely concerned with the paper title. Whether it is really worth pursuing the dispute before this court in order to establish a new starting position under which neither party has a paper title to hedge and ditch is a matter for the parties."
The case has been presented to us on the basis that the ditch did remain vested in Mr Beard; and by deed dated 9th August 1996 made between the executors of Mr Beard of one part, Mrs Burton of the second part and the defendant of the third part, title to the ditch has now passed to the defendant. The principal submission is that the plaintiff never owned the ditch, and so could not complain of trespass upon it.
Central to the appellant's submission is the proposition that prior to the 1975 conveyance the boundary between the two farms had been fixed by operation of the hedge and ditch presumption and that, having once been fixed, it could not and did not change.
The origin of the presumption can be traced back to observations of Lawrence J. in the course of argument in Vowles -v- Miller [1810] 3 Taunt. 137 when he said:-
"The rule of 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,...
To continue reading
Request your trial
-
McCoy and McCoy v McGill and Roe
... ... AND MICHAEL McGILL AND TIMOTHY ROE DEFENDANTS ALAN WIBBERLEY BUILDING LTD v INSLEY 1999 1 WLR 894 O'DONNELL v RYAN 1856 4 ... ...
-
Pennock and Another v Hodgson
...to ascertain the boundary and whether the bed of the stream was retained or conveyed. 7 The opinion of Lord Hoffmann in Alan Wibberley Building Limited v. Insley [1999] 1 WLR 894 is now regarded as the leading modern authority on the construction of the parcels in a conveyance. The rest of ......
-
Devon Cameron v Angela Boggiano and Another
...parcels in a conveyance based on two binding decisions of the House of Lords: Eastwood v. Ashton [1915] AC 900 at 906 and Alan Wibberley Building Limited v. Insley [1999] 1 WLR 894. Pennock was cited with approval in the recent case of Brown v. Pretot [2011] EWCA Civ 1421. 59 The main groun......
-
David James Brown and Another (Claimants/ Respondents) v Daniel Rene Pretot and Another
...paragraph 9 of his judgment (with which the other members of the Court agreed) Mummery LJ distilled the following points from Alan Wibberley Building Ltd v. Insley [1999] 1 WLR 894 (HL): "1. The construction process starts with the conveyance which contains the parcels clause describing the......