Richard Thomas Gilks and Another v Adrian Vernon Hodgson and Another
| Jurisdiction | England & Wales |
| Judge | Sir Stanley Burnton,Lord Justice Bean,Lord Justice Christopher Clarke |
| Judgment Date | 15 January 2015 |
| Neutral Citation | [2015] EWCA Civ 5 |
| Court | Court of Appeal (Civil Division) |
| Date | 15 January 2015 |
| Docket Number | Case No: B3/2014/0176 |
[2015] EWCA Civ 5
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MANCHESTER COUNTY COURT
HIS HONOUR JUDGE KEITH ARMITAGE QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Christopher Clarke
Lord Justice Bean
and
Sir Stanley Burnton
Case No: B3/2014/0176
Caroline Hutton (instructed by Geldards Solicitors LLP) for the Appellants/ Defendants
Ian Foster (instructed by Ralli Solicitors LLP) for the Respondents/Claimants
Hearing dates: 12th, 13th, & 14th November 2014
Approved Judgment
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Introduction
This is the Defendants' appeal against the order of His Honour Judge Armitage QC dated 30 December 2013 in which he made declarations, to which I refer below, as to the boundary of the land known as Fiveacres owned by the Respondents and the land owned by the Second Defendant, and as to the Respondents' entitlement to a vehicular right of way over a way conveniently referred to as Clay Lane in so far as it is in the ownership of the Second Defendant. The judge also made consequential orders, including an order for the payment by the Appellants of damages for trespass and/or nuisance.
This is a depressingly unfortunate dispute between neighbours. The costs so far approach half a million pounds, far more than the value of the rights involved. It is a dispute that could and should have been compromised on terms that both parties could live with. The trial took 10 days, and even then some issues, referred to by the judge at paragraph 2 of his judgment, were left undecided.
The judicial time of determining the issues following the trial was greatly increased by the regrettable lack of time for the judge to write his judgment until several months after the trial. It is well known that the longer the period between a hearing and the writing of a judgment the longer is the time required to produce the judgment. The judge was assisted by the transcripts, but obtaining them added to the costs of this case for the legal system.
The properties and the issues
The properties in question are shown on the attached plan.
Clay Lane runs from Moor Lane, a public highway, to the north. It was originally a public footpath, but is now a public bridleway. It is sufficiently wide to have been given its own Ordinance Survey parcel number, 307.
Fiveacres, owned by the Claimants, has access to the public highways to the north west of its boundary with Clay Lane. The principal question in this case is whether it also has a right of access to the public highway at the south east, via Clay Lane.
The issues for the judge were:
(1) What is the eastern border of Fiveacres, owned by the Claimants?
(2) Does Fiveacres have the benefit of a vehicular right of way for agricultural purposes from the gate in its eastern boundary (a) to the east over Clay Lane and/or (b) to the south down Clay Lane towards Edge View Farm?
The eastern border of Fiveacres
As can be seen on the attached plan numbered 2, at the eastern edge of Fiveacres and Clay Lane there is a hedge, then a ditch, and then the public right of way. The Claimants are the successors in title to Alfred Harris, who purchased the freehold titles to Ordinance Survey parcels 351 and 352, i.e., Fiveacres, from Sampson Bloor.
The conveyance to Mr Harris bears an illegible date in 1950. Immediately before the execution of the 1950 conveyance, Mr Bloor was also the owner of the land to the east of Fiveacres, namely parcel 305, which he had purchased together with parcels 351 and 352 in 1935, the conveyance being dated 20 September 1935. He was also owner of parcel 307, i.e., Clay Lane between 305 to the east and 351 and 352 to the west, that parcel being part of his acquisition shown on the 1935 conveyance. Thus the 1950 conveyance separated 351 and 352 from 307 and 305 along a line to be deduced from that conveyance.
The 1950 conveyance describes the property conveyed as follows:
".. first all that pasture field known as Green Lane Field situate on the westerly side of and fronting to Paddock Hill Lane Mobberley in the County of Chester numbered 352 on the Ordinance Survey Map of Cheshire (1909 Edition) and containing in the whole 2.605 acres or thereabouts… and secondly all that piece or parcel of land (formerly 3 several plots of land) situated near Lindow Farm Mobberley aforesaid called "the Long Croft" "the Middle Croft" and "the Bottom Croft" containing in the whole two acres of land statute measure or thereabouts and being Numbered 351 on the said Ordnance Survey Map and thereon shown as containing 2.252 acres or thereabouts … which said properties first and secondly hereinbefore described are for the purposes of identification only and not of limitation or enlargement delineated on a plan annexed hereto and thereon edged red …"
The plan annexed to the 1950 conveyance clearly shows the ditch running along Clay Lane until it departs from it, continuing to the north at the point where the Lane turns east running to the south of Ivy Cottage and The Yews, before it continues to the north. The eastern boundary shown by the red line on the annexed plan clearly does not include the ditch.
The expert witnesses called by both parties agreed that the acreages given on the 1909 OS survey plan and repeated in the 1950 conveyance were acreages produced by the OS by use of a planimeter on the survey plan, and, in accordance with standard OS practice, included the strip of land between the roots line of the hedge and the centreline of the ditch. Unless, therefore, the 1950 conveyance is to be interpreted as conveying additional land to the east of the centre line of the ditch, that line was and is the eastern boundary of Fiveacres.
The judge held that the eastern boundary of Fiveacres is the centre line of Clay Lane. He arrived at this conclusion by the application of the archaically termed presumption usque ad medium filum viae, the presumption that the owner of land bordering a right of way is the owner of the land subject to the right of way (public or private) to the mid-point of the way. Leaving aside the question (raised by Morgan J in his reliable summary of the presumption in Paton v Todd [2012] EWHC 1248 (Ch) at [35]) whether the presumption is applicable to a public footpath, which was the status of the way in 1950, its application depends on the land to which it is sought to apply the presumption abutting the way. In the present case, that question in turn depends on whether the western ditch along the way is part of the way. It would be if it were a so-called road or highway ditch, built to take surface water from the road or way. If the ditch is not part of the way, but at least the eastern half of it was retained by Mr Bloor when he executed the 1950 conveyance, the presumption cannot apply.
In my judgment, the ditch is not a part of the way. It runs along a line that, as mentioned above, departs from the line of the way to the north. The ditch drains land to the north. If it were constructed to drain the public right of way it would follow the line of Clay Lane to the north, but it does not. Indeed, there is evidence that the ditch is shown as the public boundary on the 1855 Indenture plan. Furthermore, the judge's construction is inconsistent with what appears to have been the carefully drawn boundary marked on the plan annexed to the 1950 conveyance. It is true that the delineation was "for the purposes of identification only and not of limitation or enlargement", but that qualification does not justify ignoring it. There is also some significance in the fact that the parcels conveyed were not described, as they might have been, as abutting the way. Furthermore, there was good reason for Mr Bloor to want to retain the way, which was wide enough to be used for pasturing his animals. The fact that it was given a separate parcel number, 307, is itself indicative of its being significant in area, as Mr Powell, the Appellants' expert witness, stated in evidence, relying on Oliver on the History of Ordinance Survey Maps.
There is also a question whether the whole of OS 307 was in 1950 subject to the right of way, given that it is far wider than necessary for a footpath: see Ford v Harrow UDC (1903) 88 LT 394. In view of my conclusions set out in the preceding paragraph, it is a question I need not answer.
The right of way
The Respondents contended that they had a right of way from the gate to Fiveacres over the Appellants' land on two bases: that an easement or quasi-easement had been acquired under the 1950 conveyance, by virtue of the rule in Wheeldon v Burrows, and on the basis of prescription by the doctrine of the lost modern grant. The judge considered the Wheeldon v Burrows claim and then the prescription claim. However, given the difficulties, and perhaps the artificiality, of determining what access to Fiveacres existed and what use was made of it, over half a century ago, I prefer to consider the prescription claim first.
Prescription
The judge's summary of the applicable law at paragraphs 120 and 121 of his judgment has in the main not been challenged. The challenge by the Appellants has been to his analysis of the evidence.
The judge heard the testimony of numerous witnesses. He found, and was entitled to find, that the toxic relationship between the parties led to much of the evidence being at best unreliable. He carefully summarised the witnesses' evidence, and his findings as to who was and who was not a reliable witness were fully reasoned and cannot be, and are not, impugned. It...
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