Jones v Price

LORD JUSTICE WILLKER: This appeal arises out of a dispute between neighbouring farmers in Montgomeryshire as to the responsibility for maintaining the hedge that lies between their respective properties. Each blames the other for the defective condition of the hedge. Each complains that by reason thereof the other's sheep and cattle have strayed on to his land and caused damage. According to the particulars given in the respective pleadings the damage caused has been quite considerable. Yet the length of the hedge in question is little more than 100 yards, Either party could at any time, with the expenditure of a few pounds,have carried out repairs to the hedge sufficient to prevent the straying of the animals. Instead of taking this course, however, the parties have elected to stand upon their supposed rights and to fight out the dispute in court. This has led to an examination of some of the fundamental principles relating to the mutual rights and obligations of neighbouring owners in respect of the maintenance of boundary fences.

The plaintiff is the owner of a farm called Nant-yr-hebog. The defendant is the owner of an adjoining farm to the eastward called Caen-v-coed. The respective farms are clearly marked on the 1/2500 Ordnance Survey Sheet with which we have been supplied Both farms lie on the south side of, and immediately adjacent to, the River Severn. The disputed hedge runs south-westward from the bank of the Severn, dividing the plaintiff's fields 206 and 229 from the defendant's fields 205 and 230. The total length of this hedge is some 240 yards. But we are concerned only with the northern part of it, a length of about 130 yards.

The plaintiff's pleaded case consisted of a straight allegation of cattle trespass by the defendant's animals. The defendant's pleaded case, as amended, was that, while he was himself responsible for the southern half of the bodge, the northern half (that is, the disputed 130 yards) was the responsibility of the plaintiff. At the trial the plaintiff sought to establish that the defendant was responsible for the maintenance of the whole length of the hedge, that is, the whole 240 yards. It will thus be seen that there was never any dispute with regard to the southern part of the hedge; the dispute related solely to the northern part, that is, substantially that part which divided fields 206 and 205.

The trial, which extended over two days, took place before 31s Honour Judge Glyn Burrell, Q. C., at Llanidloes County Court on the 24th April and the 24th June 1964. The learned judge reserved his judgment, which he delivered on the 29th July 1964. As to the disputed part of the hedge the learned judge resolved the issue between the parties in favour of the defendant, holding that theplaintiff was responsible for its maintenance. On that basis he referred the case to the registrar to assess the amounts of the respective claims.

On the western side of the hedge, and at a distance from it varying from almost nothing to 7 or 8 yards, is a stream, also called Nant-yr-hebog, which flows north-eastwards into the River Severn. This is only a small stream and not such as to constitute an obstacle for cattle. I gather that in dry weather it amounts to little more than a trickle, but that it is capable of becoming a torrent in wot weather. Neither side's title deeds were in evidence, but it appears that they contained nothing to show exactly where the boundary between the two farms lay. Nor did they contain any provision with regard to the maintenance and upkeep of the disputed hedge. The learned judge found that the boundary between the two farms was the bed of the stream. He based this conclusion largely on evidence given by Mr Rowlands, a local estate agent of considerable experience. But it is fair to observe that the learned judge also took the opportunity of viewing the site for himself.

The learned judge's finding, if accepted, means that the whole of the disputed hedge ran through the defendant's land. The plaintiff now accepts this finding, though it is quite inconsistent with his pleaded case. The defendant on the other hand, invites us to say that the learned judge was wrong in this respect, and that the hedge formed the boundary between the two farms, or alternatively stood wholly on the plaintiff's land. One thing which is abundantly clear is that, whichever of the parties is the owner of the strip of land between the hedge and the stream, it cannot be of much value to him. It is a veritable no-man's land which neither can effectively use.

Although finding that the disputed hedge lay wholly on the defendant's land, the learned judge nevertheless decided, in favour of the defendant, that the plaintiff was responsible for maintaining it. This conclusion was based on a finding that there was an agreement at some time over fifty years ago between the predecessors in title of the parties that each of them should be responsible forhalf the hedge, the occupier of Nant-yr-hebog being responsible for the northern half. The learned judge found that that agreement had been acted upon on a number of occasions up to the year 1950. Basing himself on these findings, the learned judge expressed his conclusion as follows: "I hold, therefore, that there is a quasi-easement in favour of Caen-y-coed by agreement and/or by ancient usage arising long before this dispute arose. It may well be that it has gone on for centuries, but I am satisfied with the proof that I have".

The learned judge's findings were largely based on evidence given by Mr John Davies, an old man of eighty-five years of ago, who gave evidence for the defendant, and who was able to supply a good deal of information about the past history. The learned judge said of Mr John Davies that his evidence was not easy to follow, that he was hopelessly at sea on dates, but that apart from one or two obvious mistakes his evidence was probably not very far out. Having set out the gist of Mr Davies's evidence, the learned judge summarised his impression of him as follows: "He was not sure about certain points, but I must say I came to the conclusion that on the main issues his evidence is to be accepted. I certainly accept it against the evidence of the plaintiff where they come into conflict".

Mr John Davies came to Nant-yr-hebog in 1910, when he married the daughter of the then owner, who herself later became the owner. From 1910 to 1949 Mr Davies lived at and farmed Nant-yr-hebog; indeed, he continued to do so until his wife sold the property to the plaintiff. During most of that period, Mr Davies's brother Tom was occupying and farming Caen-y-coed. Mr Tom Davies lied about 1945, when the defendant acquired Caen-y-coed. Mr John Navies said that he and his brother shared the maintenance of the Ledge between them, he accepting the responsibility for the northern part of the hedge. He said that this arrangement went back to a till earlier time when Nant-yr-hebog was being farmed by one arman as bailiff for a Mr Evans. The plaintiff gave evidence that the winter of 1950 (that is, shortly after he had acquiredNant-yr-habog) he himself pleached the disputed part of the hedge from the southern boundary of field No. 205 northwards. In this, it appeared that he had the help of Mr John Davies, who was still about the place, and who told him that it was his hedge. The plaintiff also admitted that since then the defendant had been "on to him" about repairing the hedge.

Though perhaps not very happily expressed, I take the learned judge's conclusion to mean that the defendant had established that the occupier of Caen-y-coed had a prescriptive right to have the northern part of the boundary hedge maintained by the occupier of Nant-yr-hebog. Mr Francis, in his argument for the plaintiff, while disputing that the evidence justified any such conclusion in the present case, conceded that such a prescriptive right is one that the law will recognise as capable of attaching in certain circumstances. But he pointed out (and it is accepted by both sides) that such a right has always been regarded as something of an anomaly. It has been described as a "quasi-easement". It is not a true easement, for properly specking an easement requires no more than sufferance on the part of the occupier of the servient tenement, whereas an obligation to maintain a hedge involves the performance of positive acts.

In the course of the argument we were referred to Gale on Easements, (thirteenth edition, pages 33,34) where the relevant law is usefully summarised as follows: "A true easement, as has been seen, is either a right to do something or a right to prevent something. A right to have something done is not an easement, nor is it an incident of an easement: for instance, the owner of the site of a right of way is not bound to keep the way in repair. An obligation to do something on one's own land can only arise, speaking generally, by statute or contract, and the burden of a contractual obligation of that kind does not run with the land. Anomalously, however, the courts have recognised what has been called a prescriptive obligation on the owners and occupiers of a piece of land to maintain a...