Alan Wibberley Building Ltd v Insley

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BROWNE-WILKINSON,LORD LLOYD OF BERWICK,LORD HOFFMANN,LORD HOPE OF CRAIGHEAD,LORD CLYDE
Judgment Date29 Apr 1999
Judgment citation (vLex)[1999] UKHL J0429-1

[1999] UKHL J0429-1

HOUSE OF LORDS

Lord Browne-Wilkinson

Lord Lloyd of Berwick

Lord Hoffmann

Lord Hope of Craighead

Lord Clyde

Alan Wibberley Building Limited
(Respondents)
and
Insley
(Appellants)
LORD BROWNE-WILKINSON

My Lords,

1

I have had the advantage of reading in draft the speech of my noble and learned friend Lord Hoffmann. For the reasons which he gives I would allow the appeal and make the declaration which he proposes.

LORD LLOYD OF BERWICK

My Lords,

2

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Hoffmann. For the reasons he gives I too would allow the appeal and make the declaration which he proposes.

LORD HOFFMANN

My Lords,

3

This appeal arises out of a dispute over the ownership of a tiny strip of garden in rural Staffordshire. But it raises a point of general importance about farm boundaries. That is why leave was given to bring an appeal to your Lordships' House.

4

Boundary disputes are a particularly painful form of litigation. Feelings run high and disproportionate amounts of money are spent. Claims to small and valueless pieces of land are pressed with the zeal of Fortinbras's army. It is therefore important that the law on boundaries should be as clear as possible.

5

The first resort in the event of a boundary dispute is to look at the deeds. Under the old system of unregistered conveyancing, this means the chain of conveyances and other instruments, going back beyond the period of limitation, which demonstrates that the owner's title is in practical terms secure against adverse claims. These conveyances will each identify the subject matter in a clause known as the parcels which contains the description of the land. Sometimes it is no more than a reference to the land conveyed by an earlier conveyance, which will then have to be consulted. Older conveyances of farm property often describe the property as being the house and land in the occupation of the vendor or his tenant. The parcels may refer to a plan attached to the conveyance, but this is usually said to be for the purposes of identification only. It cannot therefore be relied upon as delineating the precise boundaries and in any case the scale is often so small and the lines marking the boundaries so thick as to be useless for any purpose except general identification. It follows that if it becomes necessary to establish the exact boundary, the deeds will almost invariably have to be supplemented by such inferences as may be drawn from topographical features which existed, or may be supposed to have existed, when the conveyances were executed.

6

The same is true in the case of registered conveyancing. When registration was first introduced in 1862, Parliament thought it would be an improvement if the maps and plans used in the land registry showed the exact boundaries. But this turned out to be a mistake, for the reasons given by a Royal Commission which sat to consider land registration a few years later. The following passage from the Report (Land Transfer Commission on the Operation of the Land Registry Act (1870), p. xxix, para. 80) is cited in Ruoff and Roper, Registered Conveyancing (1998), vol. 1, para. 4-18:

"Everyone who has had experience in conveyancing knows that although the difficulties of identifying the parcels seem to be serious and numerous, yet in point of fact they hardly ever arise. The conveyancer sitting in his chambers is unable to identify things of which the description varies from time to time. But the attorney or land agent, seeing with his own eyes, and communicating directly with the person in possession, is in the vast majority of cases satisfied that his employer is getting the thing he contracted to have, and the history of which is narrated in the abstract of title. If there is any border land over which the precise boundary line is obscure, it is usually something of very trifling value and the purchaser is content to take the property as his vendor had it, and to let all questions of boundary lie dormant. But the Act of 1862 prevents a transfer on these terms. People who are quite content with an undefined boundary are compelled to have it defined. And this leads to two immediate consequences, both mischievous. First, notices have to be served on adjoining owners and occupiers which may and sometimes do amount to an enormous number and the service of which may involve great trouble and expense. … The second [mischief] is that people served with notices immediately begin to consider whether some injury is not about to be inflicted on them. In all cases of undefined boundary they find that such is the case, and a dispute is thus forced upon neighbours who only desire to remain at peace."

7

As a result of this report, the law was changed by the Land Transfer Act 1875 to introduce what is known as the "general boundaries' rule. This is now contained in Rule 278 of the Land Registration Rules 1925:

"(1)Except in cases in which it is noted in the Property Register that the boundaries have been fixed, the filed plan or General Map shall be deemed to indicate the general boundaries only.

"(2)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 proportion of any adjoining road or stream."

8

The Land Registry uses maps based upon the Ordnance Survey which are, of course, usually very accurate. For example, if one field is divided from another by a natural feature such as a hedge, the line on the Ordnance Survey map will indicate the middle line of the hedge. But the effect of the general boundaries rule is that the owner of a field shown on the filed plan by reference to the Ordnance Survey map does not necessarily own it up to the middle line of the hedge. The precise boundary must, if the question arises, be established by topographical and other evidence.

9

There are certain presumptions which assist the inferences which may be drawn from the topographical features. Perhaps the best known is the one which is drawn from the existence along the boundary of a hedge and a ditch. In such a case, it is presumed that the boundary lies along the edge of the ditch on the far side from the hedge. The basis of this presumption was explained by Lawrence J. in Vowles v. Miller (1810) 3 Taunt. 137, 138:

"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 …."

10

It should be noticed that this rule involves two successive presumptions. First, it is presumed that the ditch was dug after the boundary was drawn. Secondly, it is then presumed that the ditch was dug and the hedge grown in the manner described by Lawrence J. If the first presumption is displaced by evidence which shows that the ditch was in existence before the boundary was drawn, for example, as an internal drainage ditch which was later used as a boundary when part of the land was sold, then there is obviously no room for the reasoning of Lawrence J. to operate.

11

It is the scope of these presumptions which is in issue in the present appeal. The appellant Mr. Insley lives at Saverley Cottage in the village of Saverley Green in Staffordshire. In 1985 he bought a strip of extra land for his garden from Mrs. Burton, the owner of the neighbouring Home Farm. It lay along part of the boundary which separated Home Farm from Saverley Green Farm. Between the two farms there was a hedge and a ditch which had been there as long as anyone could remember. The hedge was on Mr. Insley's side of the ditch. The field on the other side had been acquired by the respondent company ("Wibberley") from the owner of Saverley Green Farm in 1984.

12

In 1985 Mr. Insley, relying upon the hedge and ditch presumption, grubbed up the hedge along his section of the boundary and erected a post and wire fence along the far side of the ditch. Wibberley objected. It claimed that the true boundary ran along the middle of the hedge. It brought proceedings in the County Court to recover possession of the strip which Mr. Insley had enclosed. Wibberley was successful before the judge (Mr. Recorder Alan Pardoe Q.C.) and by a majority (Simon Brown and Ward L.JJ., Judge L.J. dissenting) his judgment was affirmed by the Court of Appeal.

13

The burden was upon Wibberley to show that it had a better title than Mr. Insley. He was in possession and therefore needed to show no title at all. Possession is in itself a good title against anyone who cannot show a prior and therefore better right to possession: Asher v. Whitlock (1865) L.R. 1 Q.B. 1. The question was therefore whether Wibberley had acquired a title to the strip. The land was unregistered and the question therefore depended upon an examination of Wibberley's deeds.

14

The title of Saverley Green Farm could be traced back to the seventeenth century. It has always been in separate ownership from Home Farm and there was nothing to show that the boundary had not always been in the same place. Wibberley had acquired its land by a conveyance dated 14 May 1984 from the executors of Joseph Bedson, who had owned Saverley Green Farm from 1921 until his death in 1954. The parcels in the conveyance to Wibberley described the land by reference to a plan "for the purpose of identification only" and by reference to the conveyance of 11 April 1921 by which Joseph Bedson acquired the land. In order to determine what land was conveyed to Wibberley, it is...

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