Burns v Morton
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SWINTON THOMAS,LORD JUSTICE TUCKEY |
| Judgment Date | 27 May 1999 |
| Neutral Citation | [1999] EWCA Civ J0527-20 |
| Judgment citation (vLex) | [1999] EWCA Civ J0527-4 |
| Docket Number | CCRTF 98/0838/2 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 May 1999 |
[1999] EWCA Civ J0527-20
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SUNDERLAND COUNTY COURT
(His Honour Judge Wood)
Royal Courts of Justice
The Strand
London WC2
Lord Justice Swinton Thomas
Lord Justice Tuckey
CCRTF 98/0838/2
FC2 99/6147/2
MR P KRAMER (Instructed by Messrs Richard Reed & Co., Sunderland SR1 1NB) appeared on behalf of the Appellant
MR F SUCH (Instructed by Messrs Bretherton Ditchburn & Nelson, Sunderland, Tyne & Wear) appeared on behalf of the Respondents
Thursday 27th May, 1999
This is an appeal from an order of His Honour Judge Wood, given in the Sunderland County Court, on 23rd March 1998.
The dispute between the parties concerns a boundary dispute between Mr and Mrs Burns as claimants and Mr Morton as defendant. The claimants are the owners of land and a dwelling-house at 5 Orchard Gardens, Whitburn, Tyne and Wear. The defendant is the owner of the next door property, 4 Orchard Gardens. Their gardens adjoin one another and the issue that arose for the judge's decision related to the boundary, or one of the boundaries, between the two gardens. The claimants' particular complaint was that the defendant clipped and pruned a Leylandii hedge belonging to them and on their land, whereas the defendant said that he was entitled to clip the hedge because it was encroaching on to his land. That dispute, and others which arose between the parties, gave rise to the issue as to the true boundary between the two properties.
In 1965 the two plots of land were in the joint ownership of Mrs Berriman. On 16th December 1965, 5 Orchard Gardens was conveyed by Mrs Berriman to a Mrs Hall. A plan was attached to the conveyance. Clause 4 of the conveyance itself, which is of considerable relevance to this dispute, is in these terms:
"It is further hereby agreed and declared that the division garden walls or fences (if any) on the North and South sides of the piece of land hereby conveyed shall be party walls or fences and maintainable accordingly and shall be erected to the approval of the Architects of the Vendor as to one-half of the thickness thereof on the property hereby conveyed and as to the other half thereof on the adjoining land now formerly of the Vendor."
In 1967 the other plot, plot 4 Orchard Gardens, was conveyed to the appellant's predecessor in title by conveyance dated 10th August 1967, and contains a similar, though not absolutely identical, provision. The provision in that conveyance reads as follows:
"the dividing garden wall or fence (if any) on the North side of the said property and the wall on the South side thereof shall be party walls or fences and maintainable accordingly and any wall or fence on the North shall be erected to the approval of the Architects of the Vendor as to the one half of the thickness thereof on the said piece of land hereby conveyed and as to the other one half thereof on the adjoining land."
It is the wall on the north side of the property which is the subject of the dispute.
At some date prior to 1977 a fence was erected and it is common ground that the fence was erected along the boundary line between the two properties and became a dividing fence and a party fence.
The appellant, Mr Morton, purchased 4 Orchard Gardens in 1977. In 1979 he removed the boundary fence and in its place he built a wall. At that time the adjacent property was owned by Mr and Mrs Noble. The judge found that the appellant built the wall about six or nine inches behind the line of the fence, namely six or nine inches on his side of the fence which had previously demarcated the boundary between the two properties. Mr and Mrs Noble planted the Leylandii trees close to the wall and in a position where, as the judge found, they were almost bound to grow over the wall or fence. In 1990 the respondent purchased 5 Orchard Gardens. Disputes arose in relation to trellis work and plants or hedges and the Leylandii trees on the respondents' side of the wall. In consequence these proceedings were issued.
The judge came to the conclusion that the wall erected by Mr Morton in 1979 was the boundary between the two properties; in other words, that it replaced the previous boundary between the properties with the result, if the judge was right, that the respondents obtained a strip of land of some six or nine inches in width. On page 2 of the judgment, the judge said this:
"The clear intention, therefore, in my judgment, was that the party wall or fence erected between the two properties was intended to be a party wall owned by both parties. Originally, it seems there was in fact a wooden fence between the properties and there is little dispute but that that was a party fence, but that fence was eventually removed and in about 1979 the defendant erected a wall which we can now see in the various photographs and plans, about 6 or 9 inches behind the line of the fence, and he regarded that as his wall.
As far as I can tell from the evidence, the defendant did not consult with his then neighbours, Mr and Mrs Noble, about it, although he does say in his evidence at page 28 in the bundle that it was his hope or intention that they would clad the other side of the wall, particularly the concrete part which is left exposed, with some sort of stone cladding."
The judge then referred to an Enforcement Notice served by the local Borough Council and the fact that Mr and Mrs Noble had planted the trees extremely close to the wall or fence.
There is no dispute between the parties that the wooden fence which was in place prior to 1979 did, as the judge found, demarcate the boundary between the two properties. The judge recited the history and on page 4 of the judgment he said:
"… in order to ascertain whether the defendant has trespassed on the plaintiffs' land, or indeed pruned trees excessively, it seems to me necessary first to ascertain where the boundary between the premises is. In my judgment, the clear intention of Clause 4, and of the parties who lived on both sides up until 1979 at any rate, was that the fence was the party wall, and whilst I accept that the defendant deliberately built his wall inside the fence line, he must have been aware of the provision of Clause 4 because it appears in his own title or document of title, which is at page 71 in the bundle, and he decided to build this wall without, as I say, any consultation with his neighbours."
The judge then referred to Watson v Gray [1879] Ch. D. 192, and he continued by saying this:
"The defendant says that he pruned the trees back to where he believed the boundary was. Well, I accept that evidence. It seems to me that is correct but, unhappily for the defendant, the boundary, as I find it, is not where he thought it was. Consequently, I do find that the defendant trespassed onto the plaintiffs' property and was not entitled to use the remedy of self-help as he claimed he was doing."
Accordingly, the judge found that the boundary between the properties was in 1979 demarcated by the new wall and went on to award damages accordingly.
Mr Kramer, on behalf of the appellants, submits that the judge was wrong to come to that finding. At the centre of Mr Kramer's submission is the concept that the building of a wall by Mr Morton within the confines of his own property is not capable in law of transferring to the neighbouring owner title to a strip of land between the centre of the wall and the original boundary.
Mr Such, on behalf of the respondent, submits that the central issue in this case is whether the wall as erected in 1979 is, following the oral agreement, a division wall designating the boundary between the properties despite the fact that it is six or nine inches inside the boundary as it was before 1979. He submits that the Land Registry practice required the plan to set out the boundary of the property between the properties, and that the wording in the conveyance is vital to tell the world, and in particular the purchaser, where the boundary lies. In this case that can only be ascertained by reference, as Mr Such puts it, to the boundary or party wall.
Mr Such submits that the two conveyances are in similar terms and both refer to divisional walls and describe those dividing walls as party walls. Accordingly, Mr Such submits, that that wall is both a divisional wall, which laid down the boundary between the two properties, and is also a party wall owned as to half each between the parties, the wall can be regarded that purpose referred to. He then submits that building a wall four or five inches back from the previous boundary is minimal and did not in essence alter the character of the previous boundary fence or wall. Then, finally, relying on the case of Neilson v Poole [1969] 20 P&CR 909, Mr Such submits that there was an implied agreement between the parties that the new wall should be both a boundary wall and a party wall. Mr Kramer responds by submitting that the dividing walls in the conveyances mean no more than a wall dividing the property from another owner and that expression does not define the boundary between the properties.
In my judgment, Mr Such's submissions are well-founded. Not only do his submissions, in my view, accord with principle but also with authority and with commonsense.
The facts of Neilson v Poole, as Mr Kramer rightly pointed out, are somewhat different to the facts of the instant case, but the guidance given by Megarry J, who was of course exceedingly experienced in this field of law, in that case is, in my view, of great assistance in the...
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