Christine Pardoe (Now Christine Vermuelen) (Plaintiff/Appellant) v John Pennington and Another

Thursday 7 November 1996

This appeal arises from a dispute concerning a cess-pit. To outward appearance there is nothing to distinguish this cess-pit from the many others which, in rural areas (like the north Cornish coast in which it is situated) continue to perform a mundane but indispensable purpose. In terms, however, of the litigation costs to which it has given rise, it must by now have acquired the dubious distinction of ranking among the most expensive cess-pits ever built.

The title to the land in which it has been sited is in contest between two ladies, whose dispute has arisen in this way. The plaintiff (formerly Miss Pardoe and now Mrs Vermuelen) is the owner of Trethevey Manor near Tintagel. The second defendant Mrs Pennington is the owner of the house opposite called Ivy House, which she occupies with her husband the first defendant. The two houses face each other on a north-south axis across a bridleway which gives access from the nearby public road on the west to agricultural land lying to their east. The plaintiff's property is not served by main drainage. To make the premises suitable for holiday letting, it became necessary for her to construct a cess-pit. In the belief—or at least the hope—that she could establish ownership of the surface of the bridleway, she decided to place it there. Her chosen location was beneath the northern verge—that is to say the verge furthest from her own dwelling and immediately adjacent to the boundary of Ivy House. This was resented by the defendants who took steps to interfere with the operation of the cess-pit and asserted the second defendant's own title to the surface of the bridleway.

Proceedings followed in the Bodmin County Court, where (upon an exchange of undertakings to preserve the status quo in the meantime) a preliminary issue was ordered to be tried as to the ownership of the surface of the bridleway at the relevant point. On 23 February 1995 His Honour Judge Anthony Thompson QC found that the disputed section of the bridleway was owned by the second defendant. From that finding the plaintiff now, by leave of this court, appeals.

The conveyancing history can be summarised as follows. Trethevey Manor was originally part of a much larger holding of some 275 acres known as Trethevey Manor Farm, which was bought in 1919 by Mr Sidney Harris ("Sidney"). The property he acquired is conveniently pictured as comprising five areas—the western area lying on the west side of the main Tintagel to Boscastle road; the northern area adjoining a feature called (evocatively) Arthur's Quoit; the eastern area consisting of land around a property called Ganver; the southern area comprising valley land adjoining a river; and (in the midst of those four areas) the central area bisected by the bridleway. At the western end of the bridleway, built along its southern frontage and facing north, was a complex of buildings of which the house now known as Trethevey Manor formed part. The complex consisted of a property named Trethevey House to the west (facing the main road but with some frontage to the bridleway), the farmhouse called Trethevey Manor in the centre, and an adjacent range of farm buildings to the east.

The 1919 conveyance defined the parcels by reference to a plan incorporating field and plot numbers based upon the 1907 edition of the Ordnance Survey map. There is no dispute that those parcels included the surface of the bridleway, which is a farm track about one mile in length beginning at the main road, passing the northern frontage of the complex of buildings just described, and ending at fields forming part of the eastern area. Its incorporation in the conveyance was effected not only by including the bridleway in the coloured portion of the plan by reference to which the land was conveyed, but also by attributing to its western and eastern sectors distinct field or plot numbers of their own which were referred to specifically in the schedule to the conveyance in which the parcels were defined. It is sufficient for present purposes to refer only to the western sector, to which the schedule assigned the description "Road", the plot No "1167" and the acreage ".653".

The bridleway was not the only farm road to be allocated its own close number. The same was true of a roadway in the western area, to which there was similarly allocated the designation of "road", a separate plot number (1218), and an acreage dimension (.799). It will be convenient to refer to this feature as "the western farm road".

For much of its length the bridleway's western sector passed on both its sides through land in the central area that was also included in the conveyance. There were various points, however, where it was adjoined to its north or to its south by parcels of land which were not included in the 1919 conveyance because they were retained by the vendor or already vested in third parties. Those parcels were, as one would expect, left uncoloured on the conveyance plan and it will be convenient to refer to them as "the white land". Two plots of white land lay on the north frontage of the bridleway immediately opposite the Trethevey Manor complex. Other plots of white land lay further to the east on the bridleway's southern frontage.

There is no dispute that under the 1919 conveyance Sidney became the owner of the surface of the bridleway. Such ownership was, however, subject to rights of way reserved by the 1919 conveyance to the vendor, and to rights of way then already vested in the white land frontagers.

Shortly afterwards, Sidney acquired from a different vendor in October 1920 a portion of the white land facing Trethevey Manor on the north side of the bridleway. It contained an old farm stable and represents the property on which the second defendant has since built Ivy House (by which name I shall hereinafter describe it). When that conveyancing was complete, there still remained a small plot of white land adjacent to Ivy House. The remaining areas of white land were also unaffected.

In 1928 Sidney sold off part of the western area to a Mr and Mrs Force. He included in that sale the part of the Trethevey Manor complex known as Trethevey House, which thus went into separate ownership and is now an Inn. It has a long frontage to the public highway and a short frontage to the first few feet or so of the bridleway on its south side.

Sidney died in 1942. There is no dispute that at that date he continued to own the whole surface of the bridleway, including the section over which the frontages of Ivy House and Trethevey Manor face each other. He died intestate and a widower, leaving as his sole next of kin his five children—Doris, William, Francis, Sidney (Junior), and Edith. Doris was Sidney's sole Administrator. Part of the land conveyed to him in 1919 had (as already described) been sold off in his lifetime. A further part (the eastern area) was sold by his Administrator in 1943.

All five children then entered into a Family Agreement dated 20 November 1945 which provided for the bulk of the land remaining in Sidney's estate to be divided in specie and devised to them in agreed plots. It should be noted, however, that it was the bulk, and not the whole, of such land that was covered by the agreement. There were scattered parcels of valley land in the southern area, amounting in all to some five acres, which—it is common ground—were not covered by the Agreement and remained in the ownership of Sidney's estate.

Although the Family Agreement itself and the Assents which gave effect to it were in due legal form, there is no record of any solicitor having acted, and the judge found that the draftsman with responsibility for drawing up all the documents was Doris's husband, who was a chartered accountant.

After reciting the formal particulars relating to the death of Sidney and the grant of administration of his estate to Doris, the Family Agreement concluded the recitals by saying:

"AND WHEREAS the parties hereto are desirous of enjoying the [property hereinafter described] in specie that is to say each party hereto to have absolute ownership of the property as set out in the schedule hereto subject to the proportion of the [Agricultural Mortgage Corporation] mortgage debt as stated in the said schedule".

The operative part of the Family Agreement then went on to provide that each of the five children should take the parcels attributed to them in the Schedule. It was a fairly scattered allocation...