Paul Fraser Harrison and Another v Justin John Brading
| Jurisdiction | England & Wales |
| Judge | Mr Justice Newey |
| Judgment Date | 16 December 2016 |
| Neutral Citation | [2016] EWHC 3267 (Ch) |
| Date | 16 December 2016 |
| Docket Number | Case No: B30BM368 |
| Court | Chancery Division |
[2016] EWHC 3267 (Ch)
IN THE COUNTY COURT AT BIRMINGHAM
CHANCERY BUSINESS
Birmingham Civil Justice Centre
Priory Courts, 33 Bull Street
Birmingham B15 3ST
Mr Justice Newey
(sitting as a Judge of the County Court)
Case No: B30BM368
Mr Anthony Verduyn (instructed by Broomfields Solicitors LLP) for the Claimants
Mr Matthew Haynes (instructed by Moore & Tibbits) for the Defendant
Hearing dates: 6–9 December 2016
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This case concerns the boundary between two properties near Ilmington in Warwickshire. One of them, Cathole House, is owned by the claimants, Professor Paul Harrison and his wife, Dr Theresa Harrison. The other, which is now known as Cathole Manor Farm, belongs to the defendant, Mr Justin Brading.
The properties were formerly parts of a single farm called Cathole Farm. Mr Brading and his family live in the old farmhouse there. The Harrisons' home, which adjoins the old farmhouse, was built in the early 1970s when the whole farm was in the ownership of a Mr Dick Taylor. In about 1972, Mr Dick Taylor moved into Cathole House, while his son Peter and his family continued to live in the old farmhouse.
Mr Dick Taylor sold the old farmhouse (now Cathole Manor Farm) to a Mr Anthony Browne in 1989. The property conveyed is specified in the first schedule to the conveyance, which was dated 8 September 1989, as the land "the approximate location whereof is shown by red edging on Plan number 1 annexed hereto and which is more particularly shown edged in red on Plan number 2 annexed hereto". Plan 2 depicts a squarish area estimated at 0.33 of an acre which is surrounded by land retained by Mr Dick Taylor. Dimensions are given in feet along much of the border. For present purposes, it is the southern and eastern sections that principally matter. The southern edge is shown as including lengths of 10 feet and 58 feet. The eastern edge is made up of distances given as 11 feet, 39 feet and 84 feet.
There are four inward-facing "T" marks on Plan 2. These are mentioned in clause 2(2) of the conveyance. This provides for the purchaser "to maintain the fences or walls shown by inward facing 'T' marks on plan number 2 annexed hereto (with the exception of the 84 foot length on the eastern boundary of the Property) in good and stockproof condition". It is also noteworthy that the second schedule to the conveyance grants the purchaser a right to use a septic tank in the field to the south of Cathole House and to enter the retained land at "the point marked 'C' on Plan number 1" to carry out repairs to the septic tank and pipes serving it. Point C is shown immediately to the east of the land being conveyed.
By the time of the sale to Mr Browne, there was a fence on some of the southern side of Cathole Manor Farm between its garden and that of Cathole House. Mr Peter Taylor (whom I shall simply call "Mr Taylor") explained in evidence that he put up a fence to delineate the old farmhouse's garden even before Cathole House was constructed. When, he said (and I accept) his father went to live at Cathole House, his father moved the fence northwards because he wanted a larger garden.
Nowadays, fencing runs diagonally to the south- east from a wall on the southern side of Cathole Manor Farm for a little way (slightly less than 10 feet) and then roughly east-south- east for a greater distance (though not as much as 58 feet). The overwhelming likelihood, as it seems to me, is that the fencing stands in the position of that put up by Mr Dick Taylor in the 1970s. No one testified to the fence having been moved and I find it hard to see how such a move could have occurred since the sale to Mr Browne.
There was some debate as to whether the fence was formerly longer than it now is. In particular, it was suggested that Mr Brading removed the "eastern half" of the fence in 2010 or 2011. However, the evidence does not appear to me to sustain this allegation, which Mr Brading denied. A fence post shown in a photograph from that period was said to come from the fence, but it differs from posts in the extant fence.
There are conifer trees to the south of the fence. A relatively defined line of trees can be made out next to the fence and there is further, less organised planting south of this line. Mr Taylor thought (and I find) that the conifers would have been planted by or on the instructions of his father.
On the eastern side of the plot sold to Mr Browne, the land fell away somewhat. Mr Taylor remembered that there was a tumbledown stone wall there when his father owned Cathole Manor Farm. He explained that he constructed a stile to allow his children to play on the land to the east. There, there were to be found a field and, north of it, an orchard, neither of which was, at any rate in large part, sold to Mr Browne by Mr Dick Taylor. The stile was to the south of a pole that is still used to supply electricity to Cathole Manor Farm and Cathole House.
Field turned to orchard a little to the north of the electricity pole. Just inside the orchard, next to the tumbledown wall, there was a meter that remains there now. Nearby, there was a track running southwards through the orchard. Mr Taylor's recollection was that the track was made of cinders and covered with grass. Among other things, the track was used by a truck that came to clear out the septic tank. When Mr Dick Taylor purchased Cathole Farm, a privy lay between the track and the northern end of the tumbledown wall, but Mr Taylor explained that this fell down in about 1970.
While Cathole Manor Farm was owned by Mr Browne, he built a retaining wall along the line of the previous tumbledown wall northwards of the electricity pole. Mr Browne also constructed steps leading down from Cathole Manor Farm through the retaining wall. However, Mr Taylor said, and I accept, that his father put up fencing on the orchard side of the retaining wall because he objected to Mr Browne having access to the orchard. North of the steps, hedging was planted next to the retaining wall. Southwards of the retaining wall, there remained the tumbledown wall, followed by a large holly tree and then, on land that was on any view retained by Mr Dick Taylor, an old stone wall running west-south-west.
During the period of Mr Browne's ownership of Cathole Manor Farm, Mr Taylor parked a caravan on the track in the orchard from time to time. He moved it, however, after Mr Browne complained.
Both before Cathole Manor Farm was sold to Mr Browne and for several years afterwards, the fields comprised in Cathole Farm, including the field immediately to the east of Cathole House and of the southern end of Cathole Manor Farm, were let to a Mr Nigel Everett and his father for grazing. Mr Everett gave evidence to the effect that their cattle grazed right up to the "old stone wall", which I take to be what Mr Taylor spoke of as the tumbledown wall. Mr Everett reckoned that the old wall and change in height sufficed of themselves to keep cattle in the field, without any need for a fence.
A Mr Richard Betteridge took over from the Everetts in 1992 and rented until 2008 the fields that Mr Dick Taylor owned, paying £100 an acre for the grazing rights to the 21 acres of fields. He recalled his cattle grazing right up to the "stone wall". At some stage, perhaps late in his time as a tenant, he put up a barbed wire fence close to the wall to keep cattle away from it.
In 1999, Mr Browne had sold Cathole Manor Farm to Mr Brading. Mr Taylor described Mr Brading and his wife Sarah as very good neighbours and referred to their kindness to his parents.
On 14 May 2008, Mr Dick Taylor (and his wife) sold the orchard east of Cathole Manor Farm to Mr and Mrs Brading. In advance of the transaction, Mr Taylor installed some new post-and-rail fencing at the western end of the orchard's boundary with the field south of it.
Professor and Dr Harrison bought Cathole House and its land from Mr Dick Taylor on 17 July 2009.
In 2010–2011, Mr Brading built a new retaining wall south of the electricity pole. The Harrisons accept that the new wall stands on the line of the old tumbledown wall.
Disputes developed between the Harrisons and Bradings over the position of the boundary between their properties in three locations: the orchard; the eastern boundary south of the orchard (referred to as "Area A"); and the southern boundary between the gardens (termed "Area B"). I am concerned with only the last two. Happily, the parties appear to have arrived at an accommodation as regards the orchard.
Each side advanced arguments based on the construction of the 1989 conveyance to Mr Browne and the law relating to adverse possession. Mr Brading also relied on an alleged boundary agreement.
I was referred to various authorities dealing with the interpretation of conveyances. As was noted by Mummery LJ (with whom Longmore and Wilson LJJ agreed) in Pennock v Hodgson [2010] EWCA Civ 873 (at paragraph 9), "[t]he construction process starts with the conveyance which contains the parcels clause describing the relevant land". The conveyance is to be looked at "in the light of the circumstances which surrounded it" (per Earl Loreburn in Eastwood v Ashton [1915] AC 900, at 906). In Pennock v Hodgson, Mummery LJ explained:
"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...
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