Davey v Harrow Corporation
| Jurisdiction | England & Wales |
| Judgment Date | 16 April 1957 |
| Judgment citation (vLex) | [1957] EWCA Civ J0416-1 |
| Court | Court of Appeal |
| Date | 16 April 1957 |
[1957] EWCA Civ J0416-1
In The Supreme Court of Judicature
Court of Appeal
This Appeal la from a judgment of sellers J., as he then was, dismissing an action brought by the Plaintiff the owner in fee of a house and premises George V Avenue, Pinner, claiming damages for nuisance and for an injunction on the ground that the roots of trees the property of the Defendants, who are adjoining owners, have penetrated into his land and caused subsidence so that his house has been extensively damaged. The learned Judge found that the Plaintiff's house had been damaged by root penetration but that the trees from which they came were not the property of the Defendants but of the Plaintiff and that accordingly the questions of law which have been elaborately argued before this Court did not arise and he gave judgment for the Defendants. The Defendants in the course of correspondence which had continued for a considerable time before action had always contended that the trees in question were their property and in the Defence originally delivered they made this admission but some two years later they obtained leave to amend and alleged that the trees were at all times material on the land belonging to the Defendants and their predecessors in title. After judgment it was found that material letters and memoranda had not been disclosed by the Defendants. Accordingly application was made to the Court of Appeal who directed further discovery and gave the Plaintiff leave to call further evidence. Having seen those documents and heard the further evidence this Court has no doubt whatever that the trees were at the material time growing on the Defendants' lend. They have new been cut down by them. We shall in the course of this judgment deal mope fully with this matter but it is regrettable that the Defendants attempted to resile from the attitude which for years they had taken up with respect to ownership and we regret that they were given leave to amend after their admission had stood on the record for so long. It was this question of fact more then anything else which accounts for the length of time the case took in the Court below and in this Court and led to the necessity of applying for leave to call further evidence. The costs of this litigation may well exceed the amount of the damages which the learned Judge assessed at £1000 if his finding should be reversed and the only satisfaction that we can find in this matter is that as this Court proposes to allow the appeal the Defendants will have to pay them. Now that we have seen the additional documents to which we have referred end heard the further evidence the materiel facts can be succinctly stated.
The land in question was formerly part of a farm. In the various conveyances which form the Plaintiff's title the parcels conveyed are always described by reference to the ordnance survey. The field with which this action is concerned is numbered on the latest survey 1097; it bore a different number in earlier maps but this is immaterial. The boundary to the South is delineated on the map by a line and the evidence of an official from the Ordnance Survey Office given before us but not in the Court below was that the line indicated the centre of the existing hedge. This is in accordance with the invariable practice of the Survey as was proved in Fisher v. winch 1939 1 K.B. 666 and in our opinion, after that case and this, courts in future can take notice of this practice of the Ordnance survey as at least prima facie evidence of what a line on the map indicates. In the present case there is a ditch or the remains of one on the South side of the hedge and the trees in question in this action were growing in the hedge. The hedge no doubt stood on a bank which we understand has almost disappeared. He doubt therefore the learned Judge was justified in the absence of the further evidence which was given before us in applying the presumption that the bank and fence were the property of the landowner on whose side of the fence the ditch was not. In about 1937 the field numbered 1097 was bought by a firm of builders, Messrs. Atherton, for the purpose of a building estate which has since been laid out and developed and the Plaintiff owns and occupies the house nearest to the hedge and bank. However, before any building was begun Mr. Yarwood, a partner in Athertons, wished as a sensible precaution to get the boundary agreed with the owners of the land to the South. At that time the owners were the District Council and the Defendant Corporation are their successors. It seems that the Council was proposing to provide a cemetery on or quite close to the adjoining land and desired to retain the bank and hedge with the trees on it as a useful screen and a contribution to the amenities of the neighbourhood. In a letter of the 28th September 1937 addressed by the Clerk to the Council to solicitors for an intending lessee of part of their land, who wanted to get the question of the boundary settled, the Council claimed the fence, as it was described in the letter, and were anxious that the fence and bank should be preserved. This was further emphasised by letter of the same date from the Clerk to the surveyor of the Council. On the 26th October that year Athertons wrote suggesting a meeting on the site to agree the boundaries, and on the 8th November the Clerk instructed the Surveyor to arrange for one. This letter clearly indicates that acme doubt was felt by the Council as to the ownership of the hedge, and it is plain that they were anxious that the boundary should be fixed so that it should be on the Council's land. Accordingly a meeting took place between Athertons foreman and a representative from the Council's Parks Department. It was a meeting of the most informal description, held not to settle a dispute, for none had arisen, but to agree in a neighbourly fashion where the boundary fence of the building estate should be placed. For the Council their representative, who may perhaps without offence be described as a head gardener, said that the Council claimed the hedge to which the builders' foreman said he had no objection but wanted his post and wire fence to be as near as possible to the hedge and as it was agreed. Mr. Yarwood arrived and was told of the arrangement and was quite content with it, and as it was settled and the fence put up. We are quite sure that it never occurred to anyone that any serious alteration of the boundary was...
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