Carmen Johnson v Walter Roy Shaw
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PETER GIBSON,LORD JUSTICE SCOTT BAKER,SIR MARTIN NOURSE |
| Judgment Date | 06 June 2003 |
| Neutral Citation | [2003] EWCA Civ 894 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | A3/2002/2575 |
| Date | 06 June 2003 |
[2003] EWCA Civ 894
Lord Justice Peter Gibson
Lord Justice Scott Baker
Sir Martin Nourse
A3/2002/2575
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
MANCHESTER DISTRICT REGISTRY
(His Honour Judge Maddocks —sitting as a High Court Judge)
MR NIGEL THOMAS (instructed by Aaron & Partners, Chester CH1 1HG) appeared on behalf of the Appellants
MR DAVID PORTER (instructed by Fieldings Porter, Bolton BL1 1PT) appeared on behalf of the Respondent
Friday, 6th June 2003
This is an appeal by the defendants, Walter Shaw and his sons Gerald and Stephen, from the order made by His Honour Judge Maddocks sitting as a High Court judge. By his order on 18th November 2002 the judge resolved in favour of the claimant, Carmen Johnson, certain disputes which had arisen between her and the defendants as to the ownership of a piece of land on the boundaries of their respective properties and as to whether the defendants had interfered with a right of way which she had over a strip of land owned by Walter Shaw, and whether the defendants had trespassed on her land. The appeal is brought with the permission of the judge.
The conveyancing history of the relevant land is a little complicated, nor has the court's understanding of the background been assisted by the disappearance of a number of the conveyancing documents after the judge gave judgment but before the bundles were returned to the solicitors who had lodged them. In essence on this appeal we are concerned with two properties: (1) land forming part of a farm at Dunham-on-the-Hill near Chester, which is known as Cornhill Farm and has been owned by Walter Shaw since 1982 and is farmed by the defendants, and (2) a neighbouring parcel of land which was a garage site and has since 1998 been owned by the claimant and developed by her.
I start with the conveyance dated 23rd July 1920 ("the 1920 Conveyance") of which only an abstract has been put before us. Cornhill Farm, totalling 105.508 acres, and two fields bearing Ordnance Survey numbers 327 and 328, were thereby conveyed to Robert Fowles. The conveyed property was shown on a small-scale plan for the purposes of identification only. It is apparent from this that the farm was divided by a railway line. The evidence is that there is access to the fields to the west of the railway line from the fields to the east of the line only by a fairly narrow and low underpass beneath the line. In addition, there is access to those western fields, including numbers 327 and 328, from a road, the old Chester to Warrington road, the A56, at a single point at the farm's most south westerly point where a strip of land (called by the judge "the side land") connects with field number 328. The acreages of fields numbers 327 and 328 were given in the 1920 Conveyance as being 9.022 and 7.665 acres respectively, together a total of 16.687 acres.
To the east of the side land and fronting the road was a property of 6.623 acres (which the judge called "the cottage lot" by reference to the cottage on that property, Morley Bridge Cottage). That part of the cottage lot which adjoins the side land was to become the garage site. On 29th August 1921 the cottage lot was conveyed on sale to Albert Wilson. On 10th July 1928 he sold a parcel of 665 square yards, part of the cottage lot, to a Mr Hume, and on 1st September 1992, after Mr Wilson's death, his personal representative, Minnie Wilson, sold a further parcel of 645 square yards to Mr Hume. These two parcels were conveyed on 21st September 1939 by Mr Hume to Spur Filling Stations Ltd ("Spur") and became the garage site.
In the meantime on 28th February 1935 Minnie Kelly, whom I assume to have been the former Minnie Wilson, sold part of the cottage lot, including Morley Bridge Cottage, to Egbert Morris and his wife Hilda.
By a conveyance dated 9th June 1945 ("the 1945 Conveyance") Robert Fowles, the then owner of Cornhill Farm, conveyed to Egbert Morris a piece of land "containing in the whole one acre or thereabouts". That land the judge called "the back land". Again, for the purposes of identification only, the land was shown on a plan. From that plan it is apparent that the back land was a long and fairly narrow parcel of land extending from the railway fence at its east end 668 feet westwards over the southern parts of fields numbers 327 and 328 immediately to the north of the cottage lot but stopping short of the westerly end of field number 328. That part of field number 328 which adjoins the western edge of the back land but was retained by Robert Fowles has, by reason of its shape, been referred to by the judge as "the axe head". We are told that its area is about 650 square yards, or about one eighth of an acre. In addition to conveying the back land, Robert Fowles, by the 1945 Conveyance, granted a vehicular and pedestrian right of way to Egbert Morris and his successors in title over the side land and a small spur connecting it with the back land. The site of the right of way was shown coloured brown on the plan. What is plain is that the freehold of the land subject to the right of way was not conveyed to Egbert Morris.
By a conveyance dated 12th March 1946 Spur conveyed the garage site to Joseph Lofthouse. The parcels were described by reference to the areas conveyed in 1939 to Spur. The plan annexed to that conveyance, on which was delineated the land conveyed, showed the western boundary of the garage site as an open ditch.
Joseph Lofthouse died in 1965 and a company, Lofty's Tours Ltd ("Lofty's"), was incorporated in 1966. Egbert Morris died intestate on 18th December 1954. By a conveyance dated 2nd December 1971 ("the 1971 Conveyance") his widow, Hilda Morris, as owner of the back land, sold to Lofty's a parcel of land, being the western end of the back land lying to the north of the garage site. By a conveyance dated 18th December 1972 the garage site was conveyed to Lofty's.
To revert to the history of Cornhill Farm, Robert Fowles died in December 1945 and the farm was conveyed to RB Fowles on 25th April 1947.
By a conveyance dated 19th November 1968 ("the 1968 Conveyance") RB Fowles sold Cornhill Farm to Stanley Bourne. What was thereby conveyed was:
" ALL THAT farmhouse land and hereditaments … known as Cornhill Farm All which said premises are more particularly described in the First Schedule hereto and are for the purpose of identification only delineated and edged red on the plan annexed hereto."
The First Schedule gives the Ordnance Survey number of each field conveyed, its description and its area. To field number 327 was added "(part)", the description "pasture" and the area "8.500" acres, with the qualification "(Est)", short for estimated. Similarly, to field 328 was added "(part)", the designation "pasture" and the estimated area "7.165" acres. Thus, the total acreage of the two fields conveyed was 15.665 acres. The total acreage conveyed by the 1968 Conveyance was given as 104.486 acres. The plan does not show that the land thereby conveyed included the axe head. The plan also shows the side land as a somewhat narrower strip than the earlier documents had shown.
On 10th April 1981 Stanley Bourne conveyed Cornhill Farm to RS Bourne by way of gift. The parcels are described by reference to the First Schedule to the 1968 Conveyance.
By a conveyance dated 30th September 1982 ("the 1982 Conveyance") RS Bourne sold Cornhill Farm to Walter Shaw. The parcels were expressed in terms virtually identical to those in the 1968 Conveyance, including, in particular, the same description of fields numbers 327 and 328, and the same plan was attached. The title to Cornhill Farm was registered on 10th November 1982 with Walter Shaw as the proprietor. The registered plan largely follows the plan of the 1982 Conveyance and so excludes the axe head, but it shows the side land as being an even narrower strip than on the plan to the 1982 Conveyance. On 6th December 1996 administrative receivers were appointed to Lofty's.
On 1st May 1998 Lofty's, acting by the administrative receivers, sold to the claimant the garage site and "all that the estate and interest of the Seller in the land shown hatched blue on the plan annexed hereto". That land was the side land. The title to the land purchased by the claimant was registered on 26th May 1998. The filed plan excluded the whole of the side land and the axe head as well as a small, irregular shaped parcel of land between the garage site and the side land. How the axe head and that parcel were included in the filed plan of the claimant's registered title in September 2000 I shall come to shortly.
I turn next to the use made by the owners of Cornhill Farm and the owners of the garage site respectively of the axe head over the years and to the events which followed the claimant's acquisition of the garage site.
The garage site, as the judge found, including from 1971 the additional land acquired by the 1971 Conveyance, was used for a motor coach business from 1946 until Lofty's went into administrative receivership. The open ditch which marked the western boundary to the garage site was culverted in the 1950s. There are three inspection chambers in a line roughly running north/south, which show the line of the former ditch. The side land came to be used in conjunction with the forecourt of the garage site for the parking and turning of coaches. This was done...
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