Strachey v Ramage

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Rimer,Sir Paul Kennedy,Lord Justice Sedley
Judgment Date16 Jul 2008
Neutral Citation[2008] EWCA Civ 384,[2008] EWCA Civ 804
Docket NumberCase No: B2/2007/1308

[2008] EWCA Civ 384

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE TRURO COUNTY COURT

(Mr Recorder Timothy Lamb QC)

Before:

Lord Justice Sedley

Lord Justice Rimer and

Sir Paul Kennedy

Case No: B2/2007/1308

Between:
Julie Strachey
Appellant
and
Fraser Thomas Ramage
Respondent

Mrs Serena Gowling (instructed by Clarke Willmott) for the Appellant

Mr Robert Sheridan (instructed by Nigel Pullen Solicitors) for the Respondent

Hearing date: 21 January 2008

Lord Justice Rimer
1

This appeal is against an order of Mr Recorder Timothy Lamb QC made in Truro County Court on 23 May 2007. The claim arose out of a boundary dispute between owners of adjoining properties in Cornwall. The claimant is Julie Strachey, the owner of fields and barns at Trenawin, Gwinear, Hayle (“the fields”). The defendant is Fraser Ramage, the owner of a house, buildings and land at 8 Trenawin Lane, Connor Downs, Hayle (“Trenawin”). Ms Strachey sought a declaration that the disputed boundary was marked by a fence that had existed since 1988. Her primary case was that her right to that declaration was supported by the true interpretation of the root conveyance dated 26 February 1988. If that was wrong, her alternative case was that she and her predecessors had been in adverse possession of the disputed land for more than 12 years since 1988, with the consequence that Mr Ramage held his registered title to it on trust for her.

2

The judge dismissed the claim. He held that the relevant section of the boundary was not marked by the fence but by an imaginary line unrepresented by any physical feature on the ground and falling mainly on Ms Strachey's side of the fence. He also rejected the adverse possession claim. Ms Strachey appeals against that decision on both grounds, permission having been granted by Chadwick LJ. Mrs Gowling represented Ms Strachey and Mr Sheridan represented Mr Ramage, as they also did below.

The conveyancing history and relevant facts

3

The fields and Trenawin were, until 1988, in the common ownership of Mr and Mrs Reginald Penrose. The land so owned was known as Trenawin Farm. In February 1988 the Penroses sold Trenawin to Mr and Mrs Stocks, the predecessors in title of Mr Ramage. In September 1988 they sold the fields to George Eustice, the predecessor in title of Ms Strachey. Relevant events occurred in 1987 and 1988 and were explained in statutory declarations made by Mr Penrose, George Eustice and Fiona Phillips (formerly Mrs Stocks), which stood as their statements at the trial. They also gave oral evidence. The judge described Mr Penrose as “a patently honest witness”, who proved his statement, which I understand to mean that he accepted Mr Penrose's evidence in it. I also interpret the judge as having accepted Mrs Phillips's evidence. He had written in his notebook that she was “firm, clear, credible”. Subject to two qualifications, the judge appears to have accepted Mr Eustice's evidence as well. The qualifications are not material, but I comment that they related in part to factual matters that the judge was apparently content to accept from Mr Penrose. The summary that follows derives from the evidence of these witnesses, supplemented by uncontroversial material.

4

By 1987 Mr Penrose and his wife had decided to sell Trenawin Farm in two separate parcels (Trenawin and the fields) with, for tax reasons, the sales to be in successive tax years. By the end of 1987 they had agreed in principle to sell the fields to Mr Eustice, a neighbour, who was already occupying them under a tenancy or licence. Mr Penrose had by then also decided to erect a boundary fence between two parcels. His main consideration in deciding upon its line was to ensure that Mr Eustice would have sufficient access to two barns in the north- east corner of the fields. That corner abuts the western side of that part of Trenawin comprising its buildings and is the focus of the dispute. The more northerly barn is the smaller of the two and lies some 20 feet to the south of a Cornish hedge marking part of the northern boundary of the fields. The larger barn lies some 14 feet to the south of that barn. The western sides of each barn are approximately in line, but the eastern side of the southern barn is some 16 feet to the east of that of the northern barn. The entrance to the northern barn faces east and the entrance to the southern barn faces north. Access to the barns whilst the land was in common ownership was through Trenawin but Mr Penrose recognised that that could not continue after Trenawin was sold. Mr Eustice could gain access to the fields themselves from property he already owned but there was no adequate tractor access to the barns over the fields from the west. Mr Penrose therefore wanted the line of the proposed boundary fence to leave Mr Eustice with sufficient access space to the barns over the fields from the east.

5

Mr Penrose and Mr Eustice marked out the line of the proposed boundary fence and erected it by 14 January 1988. It was a post and rail fence. A plan that Mr Ramage had prepared, which the judge found to be useful, shows its northerly point as some 12 feet to the east of the end of the Cornish hedge. It then ran south to a point approximately 28 feet to the east of the northern side of the northern barn, at which point (where there is a water trough) it followed a gentle south-easterly curve towards a point south-west of the south-western corner of Trenawin's kitchen, at which point it met a gate beyond which there is a privet hedge.

6

Mrs Phillips explained how she and her then husband visited Trenawin in January 1988 in order to view the property they were considering buying. The fence had already been erected. She told Mr Penrose she would have preferred it to have been in a slightly different position. His response was that, if it were so changed, Mr Eustice could not access the barns in the fields he was buying. Mrs Phillips and her husband accepted the position and that the line of the fence would mark the boundary between Trenawin and the fields. They agreed to buy Trenawin, and the Penroses conveyed it to them by a conveyance dated 26 February 1988 (“the February conveyance”), which incorporated a plan. The parcels clause described the property conveyed to them as:

“ALL THAT land together with the dwellinghouse and other buildings erected on part thereof situate in the United Parish of Gwinear and Gwithian in the County of Cornwall and comprising enclosures Nos. part 263 part 264 part 265 and part 266 on the Ordnance Survey Sheet for the former parish of Gwinear (Second Edition 1908) and known as 8 Trenawin Lane Gwinear aforesaid as the same is for the purpose of identification only edged red on the plan together with [various rights].”

7

The rights granted included (i) the right to use and maintain a septic tank serving Trenawin on the Penroses' “retained land”, access for that purpose being through the field gate at points E and F on the plan (an area not material to the dispute), and (ii) the right to gain access for hedge and boundary wall maintenance through the gate at points C and D on the plan, that being the gate at the south-eastern end of the fence erected in January 1988. The Penroses' “retained land” (comprising the fields) was described as “the land for the purpose of identification only coloured green on the plan and which is within the ownership of the Vendors.” The bulk of land sold to the Stocks (mainly represented by enclosures 263 and 265) abuts the northern boundary of the fields. The farmhouse and buildings abut the north-eastern corner of the fields.

8

An important provision of the February conveyance, to which the judge made no reference in his judgment, was clause 4, which provided:

“The Vendors hereby covenant with the Purchasers for the benefit of the property [Trenawin] to maintain and repair in good and stockproof condition the boundary fence between the property and the retained land [the fields] and which is between the points marked A and C on the plan and also the two gates which are between the points marked C and D and E and F on the plan and it is hereby agreed and declared between the parties that the said fence and gates belong in all respects to the Vendors.”

9

That was a reference to the fence erected in January 1988. The clause reflected a recognition by the parties (all four of whom executed the conveyance) that the fence marked part of the boundary between Trenawin and the fields: it was described as “the boundary fence”. It also made it clear that the fence and gate at points C/D remained the Penroses' property. Mrs Phillips's evidence was that she and her husband always recognised the fence as marking the boundary. Mr Eustice's evidence (who, as planned, later bought the fields) was to the same effect.

10

Mr Ramage's case at the trial was, however, that the fence does not mark the boundary at all but that the fence lies (at its most northerly point) some 12 feet to the east of the true boundary and so well within the curtilage of Trenawin; and that, further south, at a point level with the northern side of the southern barn, the fence lies some 24 feet to the east of the true boundary. His case was that the true boundary starts at the eastern end of the Cornish hedge (some 12 feet to the west of the northern point of the fence) and then proceeds south to the north-eastern corner of the southern barn (where there is a granite post), at which point it does a 90 degree turn to the east, in which direction it proceeds for some 24 feet (at which point it crosses the...

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