Wigginton & Milner Ltd v Winster Engineering Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE BRIDGE,SIR DAVID CAIRNS
Judgment Date07 Dec 1977
Judgment citation (vLex)[1977] EWCA Civ J1207-3
Docket Number1973 W. No. 287

[1977] EWCA Civ J1207-3

In The Supreme Court of Judicature

Court of Appeal

On Appeal from the High Court of Justice

Chancery Division

Group A

Derby District Registry

(Mr. Justice Forster)

Before:

Lord Justice Buckley

Lord Justice Bridge

and

Sir David Cairns

1973 W. No. 287
Between:
Wigginton & Milner Limited
(Plaintiffs)
(Appellants)
and
Winster Engjheering Limited
Defendants
(Respondents)

MR. JOHN WAITS Q.C. and MR. G. MACHIN (instructed by Messrs Gregory, Rowoliffe & Co., Solicitors, London, agents for Messrs. G.R. Eddowes & Waldron, Solicitors, Derby) appeared on behalf of the Plaintiffs (Appellants).

MR. DONALD NICHOLLS Q.C. and MR. J. FULTHORPE (instructed by Messrs. Roche, Son & Neale, Solicitors, London, agents for Messrs. J.M.B. Turner & Co., Solicitors, Bournemouth) appeared on behalf of the Defendants (Respondents).

1

LORD JUSTICE BUCKLEY": This is an appeal from a judgment of Mr. Justice Foster delivered on 51st March 1976, relating to the ownership of about three-quarters of an acre of industrial land at Ilkeston, in Derbyshire. The land in question was formerly in the ownership of the Duke of Rutland, and lies in the immediate area or neigh bourhood of a colliery (which I shall call the "Manners Colliery") of which at the relevant time a company called The Manners Colliery Co. Ltd. (whom I shall call "Manners") were lessees under a mining lease from the Duke.

2

In September 1920 the Duke sold by auction a very large number of freehold lots in this area, subject to the mining lease. Manners bought, amongst other lots, Lot 79% This comprised 0S122, part of 0S124, part of OS317, OS340, and small parts of 0S126B and 126C. 0S126C was a pathway running along the northern and north-western boundaries of 03317, including a small triangle of land near the north-west extremity of 0S317. Lot 795 was described in the Sale Particulars as coloured yellow on Plan No. 34, which was a plan bound up with the Particulars, and I shall call it "the Sale plan"; and as consisting of accommodation land and a playing field, and as containing an area of about 20 acres and 23 perches.

3

The Particulars then set out the following schedule relating to this lot. The schedule is in three columns, as follows:

No. on Plan.

Description.

Ordnance Area. Acres

122

Sports Ground

6.113

124

Grass

7.427

126D

Grass

0.340

317

Grass

5.926

340

Bungalows and Gardens

0.339

Total Acres

20.145

4

Reference to the Sale Plan shows clearly that part of 0S124and part of OS517 were not coloured yellow and so were not intended to be included in Lot 795. The greater part of that part of 0S317 which was not coloured yellow is the land the ownership of which is now in dispute between the parties, to which I shall refer as "the disputed land". The Schedule to which I have referred contains no reference to 0S126C, but part of this, including the triangle, was clearly shown coloured yellow on the Sale Plan. The figure "126D" is mentioned on the Sale Plan, but the Ordnance Survey figure "1260" C is not mentioned on the Sale Plan. The piece of land designated 126D" in the schedule formed an integral part of 0S126B on the Ordnance Survey map, where it is not given any distinguishing number of its own. The designation. "126D" was presumably devised by the draughtsman of the Sale Particulars to identify this particular little piece of land. It is marked with that number on the Sale Plan and coloured yellow to signify that it formed part of Lot 795.

5

The sale to Manners of Lot 795, and of other lots, was completed by a conveyance dated 23rd July 1921 and made between the Duke of the first part, certain trustees of the second part, and Manners of the third part. The original of that conveyance has been lost, but an abstract of it is in evidence.

6

The abstract of the parcels in that conveyance is in these terms: "All and singular the messuages and hereditaments situate in the town or parish of Ilkeston in the County of Derby containing 170 acres 2 roods 5 perches or thereabouts, which were specified in the first schedule thereto and were by way of identification only delineated on the plan number 1 annexed thereto and thereon coloured blue, pink, yellow and green".

7

The area coloured yellow on the annexed plan No. 1 (to which Ishall refer as "the conveyance plan") accords precisely with Lot 795 as delineated and coloured yellow on the Sale Plan. In particular, the disputed land is left uncoloured. Part 3 of the first schedule to the conveyance as abstracted contains particulars of the land coloured yellow on the conveyance plan. This part of the Schedule is headed "Accommodation land and playing field coloured yellow on plan No, 1", and contains a table in precisely the same form and terms as the Schedule relating to Lot 795 in the Sale Particulars, except that the headings "No. on Plan" and "Description" to the first two columns are omitted. The heading "Ordnance Area. Acres" to the third column is retained. The acreage of the whole is totalled at 20.14-5, as in the Sale Particulars.

8

By a conveyance on sale dated 7th December 1933. Manners conveyed to Ilkeston Collieries Ltd. "All those two pieces or parcels of land containing 13 acres 1 rood and 16 perches or thereabouts and being fields Nod. 124- (part) and 31? on the Ordnance Survey map(1915 edition)for the Parish of Ilkeston in the County of Derby situate in the Borough of Ilkeston in the said County of Derby and more particularly delineated on the plan drawn hereon and thereon coloured red". The last mentioned plan shows coloured red only that part of OS124- and that part of OS317 which were comprised in Lot 795 in the 1920 auction sale. The land coloured red on the plan does not in particular include the disputed land. Manners also sold and transferred to Ilkeston Collieries, Manne-rs1 interest under the mining lease at or about this time.

9

In 1947 Ilkeston Collieries' interest under the mining lease, and in the property conveyed by the conveyance of 7th December 1933vested in the National Coal Board. In 1964 the plaintiff company (whom I shall call "Wigginton") bought from the National Coal Board the fee simple in a triangle of land which had been OS340 on the 1915 Ordnance Survey map. This is shown as OS523 on the plan annexed to the amended statement of claim, which is taken from the 1937 revision of the Ordnance Survey map.

10

In the following year the defendant company (whom I shall call "Winster") bought from the National Coal Board what was described in the relevant conveyance as "All that piece of land situate in the Farish of Ilkeston in the County of Derby containing 5.535 acres or thereabouts being portions of the enclosures numbered 529 and 530 on the Ordnance Survey map (1937 Revision) of the said Parish and for the purpose of identification only is delineated on the plan annexed hereto and thereon coloured pink and green", OS529 and 530 on the 1937 revision were the same closes as those which were OS317 and 1260 on the 1915 Ordnance Survey map. Part of OS530 (formerly 0S126C) running along the northern boundary of OS529 (formerly OS317) which appears to have been coloured yellow on the 1921 conveyance to Manners, was excluded from this sale to Winster

11

In 1972 Wigginton bought from the Duke and Duchess of Rutland the fee simple of the land edged red on the plan annexed to the amended statement of claim, which had formerly been a railway cutting used for the purposes of certain railway lines forming part of the Manners Colliery undertaking, which I shall call "the mineral cutting". The conveyance included a small area to the north- east of the cutting, which is marked "Tanks" on the statement of claim plan. This was unexpected by Wigginton, and I shall call that small area "the boilerhouse site". As a result of the fact that thatconveyance included the boilerhouse site, Mr. Milner, one of the directors and one of the principal shareholders in Wigginton, made some investigations, as a result of which he became aware of the Sale Plan, and it appeared to him that the Sale Plan showed clearly that the sale in '1920 had not included in Lot 795 the disputed land; it showed not only that the boilerhouse site was not included in Lot 795, but also that a narrow strip of land extending along part of the northern boundary of the mineral cutting, which is shown on the statement of claim plan verged with a black or dark blue line and hatched (which I shall call "the little cutting") and an area extending in a north-easterly direction from the north-eastern boundary of the boilerhouse site, as far as and including's pond abutting on that part of 0S528 (formerly 0S126B) which on the Sale Plan had been designated 126D (which area I shall call "the finger"), That area is shown on the statement of claim plan edged in black or dark blue and partly hatched. It is those three areas, the boilerhouse site, the little cutting and the finger, which constitute the disputed land in the present action.

12

By a conveyance on sale dated 23rd October 1972, the Duke and Duchess conveyed to Wigginton all the estate, right, title or interest vested in them in the little cutting and the finger.

13

In about 1967 Winster had erected a boilerhouse on the boiler-house site, and had extended the car park of their factory, which stood on OS530 (formerly 0SJ17) to the north of the disputed land over the area of the little cutting. Winster maintain no claim, possessory or otherwise, to the finger, but Wigginton claim damages in, respect of rubbish alleged to have been tipped on it by Winster; but in this action Winster have made claim to the boilerhouse site and the little cutting.

14

The learned judge rightly held that Winstar's title depended upon the true construction and effect of the 1921 conveyance from the Duke to Manners Wigginton could have no better title to the disputed land than the Duke and Duchess could convey to them....

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