Hopgood v Brown

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeLORD JUSTICE JENKINS,LORD JUSTICE MORRIS
Judgment Date03 Feb 1955
Judgment citation (vLex)[1955] EWCA Civ J0203-2

[1955] EWCA Civ J0203-2

In The Supreme Court of Judicature

Court of Appeal

Before:

The Master Of The Rolls (Sir Raymond Evershed),

Lord Justice Jenkins and

Lord Justice Morris

Hopgood
Appellant
and
Brown
Respondent

Mr H. LESTER (instructed by Messrs Sidney Torrance & Co.) appeared on behalf of the Appellant (Plaintiff).

Mr A.E. HOLDSWORTH (instructed by Messrs Sackville, Hulkes & Archdale, Horchurch, Essex) appeared on behalf of the Respondent (Defendant).

1

THE LASTER OF THE ROLLS: At the beginning of his Judgment in the case of Wallington v. Townsend, reported in 1939 2 All England Reports at page 225 (a case which, on its facts, is sufficiently near to the present to be useful in some respects and to which, therefore, I shall return later), Mr Justice Morton observed: "The case is a good illustration of the fact that actions in which the subject-matter is comparatively trifling often give rise to the most difficult questions of fact and of law". In the present case (after, I believe, two days in the Court below and the best part of two days in this Court) we are now called upon to deliver Judgment in respect of a matter which, to an outsider, might appear to be of a somewhat trifling character. Certain it is that the litigation can fairly be said to be the result, in some measure, of misfortune, I think of want of good advice — I do not say of bad advice, because I know not sufficiently of the facts — given to the Plaintiff, and some lack, I think inevitable in such cases, of good temper.

2

The case is concerned with two small plots of land, part of what has at all material times been called the Havering Perk Estate on a proposed road, or a road since made up, called Hamlet Road in Romford in Essex. These two plots, as the plans indicate, were part of an area which had been divided intos number of small plots for building purposes, a fact which (as will later appear) is of itself of some, not negligible, significance. The two plots are adjacent, the one lying roughly to the north of the other, and they have therefore throughout the litigation been conveniently referred to as the north plot and the south plot; and I shall adhere to that convenient nomenclature.

3

The story begins on the 22nd June, 1932, when one Allen Ansell conveyed both plots to one Cyril Regent Turner. I have in my hand the conveyance to Turner of the southernof the two plots, and there is upon the face of the Deed a small plan bearing out what I have said, that the plot sold was one of a number of like plots which had been marked out upon some plan of the so-called Harvering Park Estate designed for building purposes. The parcels in that Deed were "All that piece of land situate in the Parish of Romford in the County of Essex part of the land known as the Havering Park Estate conveyed by a conveyance", which is then described, "which said piece of land has the several dimensions following, namely, a frontage to the said proposed Hamlet Road of 40 feet or thereabouts, a length along its south-west side of 170 feet or thereabouts and a width at its rear or south- east side of 31 feet or thereabouts, is adjoined on its north- east side by other land conveyed or about to be conveyed by the vendor to the purchaser, (and) comprises the whole of the plot numbered 56 and the south-westerly portion of the plot numbered 55 in the vendor's development of that portion of the estate and for the purpose of facilitating identification only is delineated and shown by the pink colour on the plan drawn on these presents". There is also made part of the Deed, by the Second Schedule to it, a number of covenants which the purchaser entered into, referring to such matters as building line and fences, etc.

4

How, the description which I have read, as it will be recalled, gave three of the four essential measurements in a plot of land of this character. It gave no measurement for what it would have called the north-easterly side of the area, namely, the boundary between this plot and what I have called the northern plot, which was also sold, as will be recalled from the schedule, to Mr Turner on the same date. The other conveyance — and I do not read it — contained a description of that north plot in all respects mutatis mutandis corresponding to the description of the southern plot which I have read, save only that in that case it was the southern orsouth-westerly boundary which was not measured, namely, this same boundarys separating the two plot the one from the other. The only other difference was that the northern boundary was slightly longer, 173 feet, and the eastern boundary slightly shorter (namely, 30 feet) than the corresponding measurements of the southern and eastern boundaries of the southern plot.

5

Let me say, having looked at the plan, that it must be obvious, it would inevitably be the case in building lots of this kind, that the plots ore of regular dimensions. It is not possible to imagine that the boundaries were intended to be otherwise than along straight lines from the frontage to the rear. But the plans are small, there is no description of the area, and I draw again attention to the formula there used, 'for the purpose of facilitating identification only" the plot is delineated on the plan. At that time it appears that both these plots were wholly vacant and unbuilt upon. I say "it appears" because it is not entirely clear whether at that stage there was on any part of the land anything to indicate the line of any of its boundaries, but from my understanding of the facts this much is clear, that nothing had been placed along the southern boundary of the northern plot, or the northern boundary of the southern plot (which is the same thing) to indicate on the surface of the earth where the boundary between there can; nor, of course, was there any need at that time or for some little time afterwards so to do, since both plots were in the same hands. Turner in fact proceeded in due course to sell to talker and, without taking time about it, it may be taken that the descriptions in those conveyances corresponded exactly with the descriptions in the conveyances of 1932.

6

I come to the 18th July, 1949, when, for the first relevant time, the ownership of the two plots, north and south,was divided; for on that date, by two conveyances, Walker sold the north plot to a Company known as W. & M. Brown (Builders) Limited and sold the south plot to M.W. Brown. It might well be supposed that there was some connection between A. & M. Brown (Builders) Limited and M.W. Brown, and that supposition would be correct. Mr Brown, who is the Defendant in this case (though he was at the trial described as a greengrocer) had an interest in the building company; but it was not a controlling interest. He was a Director, but the greater part of the shares and the control of the Company was in Mr Walter Brown, who was the Defendant's father.

7

In 1951 the first events occurred from which all that has happened in this litigation has flowed. Mr Brown, owner of the southern plot, desired to build upon his plot a bungalow and a garage, and for that purpose plans were prepared by him or on his behalf. He proceeded, with those plans, to approach the Company in which he was interested, but which he did not control, and invited the Company, first of all, to agree with him the position which, as a result of the building, the boundary between his plot and the Company's plot would inevitably take and, second, to build for him the bungalow and garage according to the plan.

8

The most satisfactory way for me to deal with this exceedingly important matter of fact is now to read two paragraphs from page 7 of the long and careful Judgment of the County Court Judge. "Mr Brown", said he, "himself stated in evidence that he had no intention of encroaching upon the Company's boundary and that there was no intention on the Company's part of permitting him to do so. He was supported on both points by his father who, as I have said, was in a position to control the Company. There was no cross-examination to suggest that this encroachment was a matter of design. Both witnesses struck me as completely honestand reliable. Neither they nor anybody else had apparently ever taken measurements to show exactly where the dividing line between the two properties ought to run. I have come to the conclusion of fact that both Brown and the Company acted with complete bona fides and intended the flank wall of the garage to run along and for its full length of 15 feet to be the boundary line of their respective properties". It was somewhat suggested, as I understood the argument, that there was no evidence to support the conclusion of fact which I last read, but I am quite clear that there was ample evidence to support that conclusion. Again I do not desire to take undue time. I am content to read one passage at page 7 of the Judge's notes from the evidence in cross-examination of Mr Brown, the Defendant: "No question of Company giving me any extra land. If in feet it was built on adjoining land, this was a mistake. The brick wall was put up intending it for the boundary between my property and the Company's. It was so understood by me in my capacity as owner of the south property and as Director of the Company owing the north property".

9

Arising from that last sentence, Mr Lester took the point that, whatever might have happened in other circumstances, the Company here was really never bound at all by any of the conseoueaces which might otherwise have flowed from what took place between Mr Brown, the Defendant, and the Company. He said that, following the strict language of that answer (which no doubt was given in answer to a question framed appropriately in cross-examination) the extent of the Company's agreement was merely that Mr Brown, the Defendant, himself had agreed with himself as Director, and that the Company as such never...

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