Ronald Laverick Shield and Another (Plaintiffs) v Henry Rutherford and Another Cecil M. Yuill Ltd (Third Party)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STAMP,SIR JOHN PENNYCUICK,LORD JUSTICE BRIDGE |
| Judgment Date | 18 May 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0518-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 May 1977 |
[1977] EWCA Civ J0518-3
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
From: Vice Chancellor Blackett-Orr, Teeside.
Lord Justice Stamp
Lord Justice Bridge and
Sir John Pennycuick
MR. C.P.F. RIMER (instructed by Messrs. Robinson & Co., WC2, Agents for Messrs. Hewitt, Brown-Humes & Hare, Bishop Auckland) appeared on behalf of the Appellants (Defendants).
MR F. BARLOW (instructed by Messrs. Meikle Skene & Co.) appeared on behalf of the Respondents (Plaintiffs).
MR I. DAWS0N (instructed by Messrs. Michael L. Cohen & Co., Stockton- on-Tees) held a Watching Brief on behalf of the Third Party, Cecil M. Yuill Ltd.
I will ask Sir John Pennycuick to deliver the first judgment.
We have before us an appeal from an order made by Vice-Chancellor Blackett-Ord on 1 July 1976. The case raises an issue upon a boundary dispute between neighbours. The Plaintiffs are Mr and Mrs Shield, who are the leasehold owners of No.62,Parkside, Greenways Estate, Spennymoore, in County Durham. The Defendants are Mr and Mrs Rutherford, who are the leasehold owners of 60, Parkside, Greenways Estate, Spennymore. The whole issue turns on the ownership of a strip of land some 4 ft. in width between the two houses. The learned judge concluded that that strip belonged to the two parties as leaseholders in equal parts, the Shields owning 2 ft. in width and the Rutherfords owning 2 ft. in width. The Shields' contention was that they owned 3 ft., the Rutherfords' contention was that they owned 3 ft., and that is the entire subject matter of this action which has been fought out before the Vice-Chancellor and now in this court.
I will state the history of this matter in rather more detail. The two houses, 60 and 62, Parkside, form part of a much larger property known as Greenways Estate at Spennymoor. That estate belonged, at the relevant time, to a company known as Cecil M. Yuill Ltd. Yuill were builders and developers, and they were in course of developing the estate in the year 1970. The general scheme of development, so far as now material, was that the bulk of the houses erected on the estate were semi-detached houses, although there were one or two detached houses. The scheme of development was that alongside each house there should be a garage, or a garage space, and that again alongside each house there should be a 3 ft. path leading from the front of the house along the wall of the garage to the back of the house. No.62, the Shields' house, is one of a couple of semi-detached houses, the other semi-detached house being No.64. Obviously the garage of each house would have to lie to the side of the house away from the other semi-detached house. No.60 is a detached house lying to the south- east of No.62. I need hardly say that this statement of fact must be, read with reference to one of the estate plans which are in evidence, So that the scheme of development was that the garage, or garage space, of No.62 should lie to the south- east of No.62. Then to the south- east of the garage space there should be a 3 ft. pathway. To the south- east of No.62 lies No.60. The scheme of development was that the garage or garage space of 60 should lie to the north-west of the house itself - that is, on the side towards No.62 - and that there should be a pathway 3 ft. wide to the north-west of that garage space. So that you would have 62 with a garage space and a 3 ft. pathway on its south- east side, then adjoining it, on the south- east side, No.60, with its garagespace and its 3 ft. pathway to the north-west of the house and adjoining the garage space and pathway of No.62. That was the scheme.
On 29 October 1970 Yuill entered into a lease whereby Youill demised No.62 to the Shields for the term of 99 years. There had been a prior contract, but I do not myself see how anything turns on that contract.
The lease is to the following effect. It is dated 29 October 1970 and is made between "Yuill, called the lessor, of the one part, and the Shields, called the lessee, of the other part. It witnesses:
"1. In consideration of the covenants" and rents, etc. "the lessor hereby demises unto the lessee all that piece or parcel of land situate at Spennymoor aforesaid which said piece or parcel of land is more particularly delineated on the plan annexed hereto and thereon edged red and is part of the lessor's Greenways Estate which estate shall in this lease mean all the land included in Title Nos.", giving them "on 2 June 1967 together with the messuage or dwellinghouse and other erections thereon or in the course of erection on the said piece or parcel of land hereinbefore described and to be known as No.62 Parkside Greenways Estate Spennymoor aforesaid".
I need not read the rest of the lease.
It will be observed that the land is described by reference, and only by reference, to the annexed plan, the land being thereon coloured red. The annexed plan is a reproduction, although on a smaller scale, of the layout plan adopted by Yuill for the development of the entire estate. It shows by a red line the southeastern part of the semi-detached block comprising Nos.62 and 64, the red line running precisely through the middle of that block. Then the lines run south-easterly from that line, and so as to form the bottom of the parallelogram the red line runs from approximately south-west to north- east, that part of the red line running exactly between No.62 and No.60, which is also shown on the plan, both houses being numbered.
I observe in parentheses that the Greenways Estate as a whole is shown by that recital to have been registered, and would accordingly be readily identifiable.
At the date of the lease, 29 October 1970, the ouse, No.62, was in course of erection, so that its precise position was ascertainable without difficulty. At that date no garage had beenerected on No.62.
Subsequently Yuill entered into a comparable lease of No. 60 in favour of the Rutherfords. That lease is dated 15 January 1971, that date being, of course, subsequent to the lease in favour of the Shields. I mention, in passing, that the contract with the Rutherfords was made on 30 November 1970, that date, likewise, being subsequent to the, lease in favour of the Shields dated 29 October 1970, so that no question as to priority in time arises.
The lease in favour of the Rutherfords likewise demised a parcel of land described by reference to the annexed plan. Again the plan is a reproduction of the larger scale estate plan prepared by Yuill, and shows, within a red line, the house No.60. The northwestern boundary is shown, I will take it (the line is rather roughly drawn), as coming exactly between the garage of No.60 (which had, in fact, already been erected) and the garage space of No.62. This lease comprises a larger area to the south- east with which we are not concerned.
So far everything appears to be plain sailing.
Unfortunately, however, Yuill, in erecting the semi-detached block consisting of Nos.62 and 64, made a mistake. They put up that block in the wrong place, in this sense, that they put it up some 2 ft. to the south- east of its position as shown on the layout plan of the whole estate. In the result the south-eastern boundary of No.62 comes 2 ft. closer to the north-west boundary of No.60 than it ought to have done, leaving only a 4 ft. space between the garage site of No.62 and the garage of No.60. One might have thought that neighbours, with reasonable good will and common sense, could have settled the entire problem in an afternoon. It would not, one would have thought, have been difficult to make some arrangement whereby they had, in common, the use of this 4 ft. strip, which, one would have thought, would have been ample for both parties to obtain access to the back of their respective houses. However, they did not come to terms. The Shields claim to be entitled to 3 ft. of the interval between their garage space and the Rutherfords' garage. The Rutherfords likewise claim to be entitled to 3 ft. of the space between their garage and the Shields' garage space. The mistake apparently first came to...
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