Drake and Another v Fripp
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewison,Lord Justice Aikens,Lord Neuberger, MR |
| Judgment Date | 03 November 2011 |
| Neutral Citation | [2011] EWCA Civ 1279 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2010/2364 |
| Date | 03 November 2011 |
[2011] EWCA Civ 1279
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
Ms Susan Prevezer QC
(Sitting as Deputy High Court Judge)
CH2009PTA0694
Royal Courts of Justice
Strand, London, WC2A 2LL
The Master Of The Rolls
Lord Justice Aikens
Lord Justice Lewison
Case No: A3/2010/2364
Mr Damian Falkowski & Mr Thomas Amraoui (instructed by Sharpe Pritchard) for the Appellants
Mr Leslie Blohm QC & Mr Alex Troup (instructed by Coodes ) for the Respondent
Hearing date: 2 November 2011
Until 1996 Hustyn Park and Higher Tregawne Land, Wadebridge, Cornwall were in common ownership. On 1 April 1996 Mr Bolesworth, the owner of both, sold Higher Tregawne Land to Mr and Mrs Madden, but retained Hustyn Park. The first question raised by this appeal is: where was the boundary between the two? The rival contenders are on the one hand a Cornish hedge and the remains of a Cornish hedge; and on the other hand a post and wire fence. The two rival boundary features are 4 or 5 metres apart and the disputed area of land between the two amounts to about 1 1/2 acres. The aggregate area conveyed by the transfer was stated to be just over 153 acres. The disputed land is thus about 1 per cent of the total. A Cornish hedge, I should perhaps explain, is a style of hedge found in Cornwall built of stone and earth. Typically it has two sides which are built by placing huge stone blocks into the earth and packing them in with sub-soil. Smaller interlocking rocks are used to build the hedge high until it reaches a level when random turns into neat rows of square stones called "edgers". The top is often grassed.
Higher Tregawne Land is now owned by SLA Property Company Ltd ("SLA") which is effectively a pension fund, and tenanted by Mr Drake. Hustyn Park is now owned by Mr Fripp. Both titles are now registered at HM Land Registry; although neither was before 1996. SLA's land was registered in 1996; and Mr Fripp's in 2001. SLA contends that the true boundary is the Cornish hedge. Mr Fripp says that the true boundary is the fence.
Mr Michael Michell, deputy adjudicator at HM Land Registry, decided in favour of Mr Fripp and the fence (REF/2008/0307). His decision was upheld on appeal by Ms Susan Prevezer QC, sitting as a deputy judge of the Chancery Division ( [2010] EWHC 2238 (Ch)). This, therefore, is a second appeal. In Wilkinson v Farmer [2010] EWCA Civ 1148 Mummery LJ (with whom Aikens and Gross LJJ agreed) said (§ 25):
"The Deputy Adjudicator was the fact-finding tribunal. Adjudicators to HM Land Registry and the Deputies have relevant expertise. Although they might sometimes get things wrong, they are usually more experienced and expert at deciding this kind of question than appellate courts are. A measure of weighed deference should be accorded to the findings and conclusions in their reasoned decisions."
The answer to the question where the true boundary lies depends on the interpretation of the transfer by which the land was transferred. A land transfer is a sub-species of written instrument; and the principles that apply to the interpretation of written instruments apply equally to land transfers. In Strachey v Ramage [2008] EWCA Civ 384 [2008] 2 P & CR 8 Rimer LJ said (§ 29):
"That required a consideration of the February conveyance in the context of the surrounding circumstances in which it was granted, and having regard also to any evidence properly admissible for the purposes of its interpretation. It is a statement of the obvious that the crucial provision in the conveyance was the parcels clause, since it was there that the parties identified the land being conveyed. It is, however, fundamental that the parcels clause in a conveyance should not be considered in isolation from the remainder of the document. It is a general, and basic, principle of the construction of documents that questions of interpretation should be answered by considering the document as a whole, since only then can the provision giving rise to the question be seen in its proper context. There can be no reason for this principle not to be equally applicable in relation to the interpretation of a conveyance for the purpose of identifying the limits of the land conveyed by it."
In addition to the written instrument considered as a whole, the court must also take into account the physical features on the ground at the date of the transfer. As Mummery LJ recently explained in Pennock v Hodgson [2010] EWCA Civ 873 (§ 12):
"Looking at evidence of the actual and known physical condition of the relevant land at the date of the conveyance and having the attached plan in your hand on the spot when you do this are permitted as an exercise in construing the conveyance against the background of its surrounding circumstances. They include knowledge of the objective facts reasonably available to the parties at the relevant date. Although, in a sense, that approach takes the court outside the terms of the conveyance, it is part and parcel of the process of contextual construction."
Both the adjudicator and the judge set out the relevant terms of the conveyance. They were as follows. First the parcels clause:
"the land forming part of Hustyn Mine Park Burlawn in the County of Cornwall as the same is for the purposes of identification only shown edged red on the plan annexed hereto and by admeasurement approximately 153.764 acres comprising
…"
| OS Number | Acreage |
| 1516 Part | 75.990 est |
| 1516 Part | 0.7 est |
| 1794 | 0.160 |
Clause 2 contained a covenant by the purchaser with the vendor to observe and perform "the covenant to maintain the boundary hedges, walls and fences in Clause 2 of the 1961 Conveyance". Clause 3 to 6 went on to provide (so far as material):
"3. IT IS HEREBY AGREED AND DECLARED by the parties as follows:
…
D. That the earth/wall boundary between points marked E and D and D and C1 on the said plan shall be deemed to be divided midway vertically.
4. The parties … HEREBY MUTUALLY COVENANT … not to allow their respective parts of the said boundary (referred to at 3 above) to fall into disrepair so as to affect the stability of the other side thereof.
5. The Purchasers HEREBY JOINTLY AND SEVERALLY COVENANT with the Vendor as follows:
(i) (Subject to the Vendor having previously carried out the works referred to in Clause 6 hereof) to maintain the boundary between points C and B, and B and F shown on the plan in good and substantial stockproof condition …
6. The Vendor HEREBY COVENANTS with the Purchasers as follows:
A. At all times hereafter to make good any damage caused to the boundary between points C and B and B and F shown on the plan by the Vendor's … animals farm machinery or vehicles
B. Within one month of the date hereof to put in stockproof condition (so that the lambs will not encroach beyond the fence and by renewing all broken posts) the fence between points marked B and F on the plan…"
The plan to which the transfer referred several times was a reduced copy of the OS Map. The parcel numbers had been taken from the 1907 edition of the OS map. OS parcel number 1516 is the parcel that we are most concerned with. Its area according to the 1907 OS map is 76.484 acres; but the sum of the two parts of that parcel given in the conveyance is 76.69 acres, although each of the two stated areas is said to be an estimate. The boundary with which we are concerned is that between points B and F referred to in the transfer and marked on the plan. That part of the boundary is at the north-western edge of OS parcel 1516. The adjudicator found (and the judge accepted) that on the 1907 OS map (from which the transfer plan was derived) the north-western boundary of parcel 1516 had been taken as being the Cornish hedge. The significance of this finding is that the fence is to the south- east of the Cornish hedge; and thus the whole of the disputed land lies to the south- east of the Cornish hedge. Accordingly Mr Falkowski argues that the acreage given on the OS map (76.484 acres) must include the disputed land. Since the transfer purported to transfer more than that acreage (but all by reference to OS parcel 1516) the conveyance must necessarily have conveyed at least the disputed land. On the face of it this is a powerful argument. However, on closer examination it has serious weaknesses. First, the transfer says that the total acreage transferred is "approximately" 153.764 acres. Second, no one has been able to explain why the transfer split parcel 1516 into two parts. Third, no one has been able to explain why the transfer did not simply transpose the acreage given on the 1907 OS map if the transfer was intended to transfer the whole of that parcel. Fourth, no one has been able to explain why the parties produced an acreage which exceeded the acreage given on the OS map. Fifth, the acreage stated for those two parcels in the transfer was said to be "est" (which everyone agrees is short for "estimated"). It is also noticeable that the second part of parcel 1516 is estimated to one decimal place, whereas all the other parcels have their areas given to three decimal places. Neither the adjudicator nor the judge regarded the argument based on the stated acreage as decisive; and I agree with them. It is, therefore, necessary to look further.
The next port of call is the plan itself. The first point to make is that the plan is stated to be "for the purposes of identification only". The second point to make is that the plan is a reduced version of a 1:2500 map. The third point to make is that the plan is marked "NOT...
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