Steward (William Edward) v Gallop (Harold James) and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lloyd,Lord Justice Jackson,Lord Justice Patten |
| Judgment Date | 27 July 2010 |
| Neutral Citation | [2010] EWCA Civ 823 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 July 2010 |
| Docket Number | Case No: B2 2009/1629 |
[2010] EWCA Civ 823
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE NEWPORT (IOW) COUNTY COURT
Recorder Claire Miskin
Before: Lord Justice Lloyd
Lord Justice Jackson and
Lord Justice Patten
Case No: B2 2009/1629
7N100310
Timothy Morshead (instructed by Parker & Gurney-Champion) for the Appellants
Tom Weekes (instructed by Roach Pittis) for the Respondent
Hearing date: 10 June 2010
Lord Justice Lloyd:
Introduction
This appeal is brought against an order made on 11 August 2009, following a judgment handed down in March 2009 after a seven day trial of a boundary dispute. The case had been estimated to require two days for the hearing in the county court, and accordingly two days were made available, on 11 and 12 September 2008. As often happens, this estimate proved woefully inadequate, and other days had to be found as and when available: three in late November and two in December. Miss Claire Miskin, who heard the claim sitting as a recorder in the Newport (Isle of Wight) County Court, found in favour of the Claimant, Mr Steward, and refused permission to appeal. Permission was granted by Rimer LJ.
The case has features in common with many disputes between neighbours about boundaries, above all that the parties have incurred amounts of legal costs in the conduct and pursuit of the proceedings which are even more disproportionate to any objective assessment of the value of the land at stake than is, unfortunately, commonly the case in litigation. In response to an enquiry by Jackson LJ shortly before the hearing of the appeal, on behalf of Mr Steward the value of the land was put at nil, while his costs were said to be £76,000 at first instance and £33,500 on appeal. The response on behalf of Mr and Mrs Gallop, the appellants, was that the land was “of very little commercial value” and that their costs would have been similar to those of Mr Steward below, and significantly more on appeal.
According to Mr Steward's evidence in this case, he and Mr Gallop had a conversation in June 2006 in the course of which the latter said that the dispute (which had already arisen) was going to cost both of them a lot of money. That was a correct prediction, but I wonder whether either of them could have imagined at that time that the costs incurred would be on anything like the scale of what we were told have by now been spent. The conclusion to which I have come is that the appeal must be allowed and the case remitted for a new trial, so that, unfortunately, yet more costs will be incurred. That prospect must be unwelcome from every point of view, but careful consideration of the issues argued on the appeal has convinced me that there is no alternative as regards the disposition of the appeal.
We were much assisted by the submissions of Counsel, Mr Morshead for Mr and Mrs Gallop and Mr Weekes for Mr Steward, neither of whom had appeared at the trial. Some aspects of the grounds of appeal involve challenges to the recorder's findings of fact. It was therefore surprising that the appeal bundle did not include any transcript of any part of the evidence. However, Mr Morshead adroitly limited this aspect of his challenge to certain points on which, he argued, the evidence from the witness statements (all of which were in the appeal bundle) was clear. On the view I have come to on the principal issues raised on the appeal, it is not necessary to deal with all of the points taken, and only a few of the factual points require discussion.
The adjoining parcels of land
I will first describe the relevant land and the nature of the dispute in outline, before coming to the details of the case and of the appeal.
Much attention was given during the trial and on the appeal to a plan on a Deed of Partition made on 14 April 1915 which related to land all of which is now owned by Mr and Mrs Gallop. I will describe the significance of the Deed more fully later. The plan indicates with reasonable clarity much of the land with which the case is concerned.
The land which it depicts lies just to the west of the village of Apse Heath, not far from Sandown in the Isle of Wight, and to the south of the road from Sandown to Newport, now the A3056, then called High Road and now Newport Road. It is roughly triangular in shape, with an apex in an acute angle at the western end. The northern boundary of the land shown runs along the southern edge of the road. To the west is shown the start of a track or drive which leads southwards into what is now Mr Steward's property. Beyond that the plan shows that there is property belonging to a Mrs Peach. The land shown to the south is identified by the word Langtreys. That now belongs to Mr Steward. The boundary in dispute is part of the boundary with that land. The land to the east of that which is the subject of the deed is identified as “Apse Heath Brickfield”.
What used to be called Langtreys is now called Galley Horne. It belongs to Mr Steward, as part of a holding said to be of some 18 acres, some of which at least (including the relevant part) has been in his family since 1922. Ignoring the westernmost part of the boundary, which runs along or close to the track leading southwards into Galley Horne, the part of Mr Steward's land which abuts that of Mr and Mrs Gallop is now an open field, having once been an orchard. Mr Steward constructed a concrete road near the boundary fairly recently.
Mr and Mrs Gallop bought their property in 2005. It had been neglected for some considerable time, and the garden was very overgrown. They cleared a lot of the garden. In so doing they also cleared a significant length of what Mr Steward says was a hedge belonging to him which formed the boundary feature between the two properties. They put up a new fence, and they laid concrete bases on which they placed three constructions, an aviary and two sheds, which he says encroached partly on his land. By these proceedings he sought an injunction preventing them from trespassing on his land, and damages.
I will refer later, as necessary, to the details of the way in which the dispute arose, and to the course of the proceedings, in which the parties’ contentions developed and changed on each side.
So far as any evidence shows, the two parcels of land either side of the disputed boundary have never been in common ownership. Certainly they appear to have been in separate ownership at least since 1864. There is no trace of a conveyance which created the boundary. Accordingly it is necessary to say something about the history of the title to the land on each side. The history of Mr and Mrs Gallop's title is more complex than that of Mr Steward. I will start with his title.
The title to the respondent's land
The land immediately to the south of Mr and Mrs Gallop's land is numbered 1427 on the 1975 edition of the Ordnance Survey. Mrs Amy Beatrice Fleming sold this, with other land, to Frederick James Norris in May 1917. He sold to Robert Edwin Steward (no relation to the respondent) in 1920, and the respondent's grandfather, William Henry Steward, bought it from him in 1922. It has remained in the family since then. The respondent himself acquired this land by a conveyance by way of gift from his mother in 1991.
Title deeds disclosed at a late stage by Mr Steward also included older deeds, among them a mortgage in 1910 and a conveyance in 1914, the plans on which are in the bundle, and show the same land as being comprised in these dealings as was later acquired by the respondent's grandfather in 1922.
By the 1991 conveyance from his mother, Mr Steward also acquired some land to the east of that which Mr and Mrs Gallop own, formerly part of the Brickworks. None of Mr Steward's land is registered.
The title to the appellants’ land
So far as the land belonging to Mr and Mrs Gallop is concerned, I will start with the land to which the 1915 deed related. An abstract of title gives details of earlier deeds, the earliest from 1899.
By this deed dated 18 September 1899 between Eliza Barnes (1), Harry Barnes (2) and Harry Barnes and George Barnes (3) a parcel of land was conveyed to Harry Barnes and George Barnes to be held as tenants in common in equal shares. The land was described as:
“All that freehold cottage or tenement with the shed buildings land and premises belonging thereto situate adjoining to Apse Heath in the Parish of Newchurch in the Isle of Wight and then in the occupation of Thomas Creasy as tenant which said hereditaments formerly comprised two cottages or tenements and with the garden and orchard thereunto belonging were formerly in the respective occupations of Joseph Barnes (since deceased) his son the said William Barnes deceased and John Jeffrey”.
Eliza Barnes was the widow of William Barnes, and Harry Barnes his eldest son and heir-at-law. The conveyance was made in order to give effect to the known desire and intention of William Barnes that the land should pass to the two brothers, not just to the heir. Accordingly, no monetary consideration passed. By then, it seems, the land was shown as enclosure 402 on the 1898 Ordnance Survey (second edition), but it is not referred to as such in the 1899 deed.
In 1911 Harry Barnes sold his undivided half share to Frederick Jesse Mackett and his wife Maude. Then in 1915 George Barnes, on the one hand, and Mr and Mrs Mackett on the other divided the land between them by the Deed...
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