Willsher v Scott
|England & Wales
|LADY JUSTICE ARDEN,LORD JUSTICE DYSON,Lady Justice Arden,Lord Justice Laws,Lord Justice Carnwath,Lord Justice Moore-Bick
|15 March 2007
| EWCA Civ 195, EWCA Civ 1558
|15 March 2007
|Court of Appeal (Civil Division)
|B2/2004/2741,Case No: B4/2004/2741
 EWCA Civ 1558
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE TRURO COUNTY COURT
(HIS HONOUR JUDGE WASSALL)
Royal Courts of Justice
Lady Justice Arden
Lord Justice Dyson
MR MICHAEL DOUGLAS QC (instructed by Messrs Hancock Caffin, Truro TR1 2EY) appeared on behalf of the Appellant
MR CHARLES AULD (instructed by Messrs Stephens and Scown, St Austell PL25 4AX) appeared on behalf of the Respondents
1. This is a renewed application for permission to appeal against the order dated 10th December 2004 of His Honour Judge Wassall sitting in the Truro County Court. The judge was concerned with a dispute as to the boundary of property owned by the parties to these proceedings. He was concerned particularly with the location of the boundaries on the northern side of land owned by Mr and Mrs Scott, and on the eastern side also of their land. The land in question is shown by a plan K1. I do not think it is necessary for the purpose of this application to say more about it at this stage.
The application for permission came before Chadwick LJ on paper. He granted permission in respect of the judge's decision in respect of the northern boundary of Mr and Mrs Scott's land, and that matter is listed for hearing today. However the appellants also renewed their application in respect of two other matters, namely the boundary on the eastern side and a decision by the judge on a question of a public highway. The reasons given by Chadwick LJ on these issues were as follows:
"I am not persuaded that there is any real prospect of success on an appeal from the judge's finding in respect of the boundary G -H [that is the easterly boundary].
Nor am I persuaded that there is any real prospect of success on an appeal from the judge's finding as to the existence of a public highway, based, as it is, on evidence of use by the public over a substantial period of time (see paragraphs 55 and 56 of the judgment) ."
Chadwick LJ gave a direction that a renewed application for permission should be listed with the appeal for which permission has been granted. Accordingly, the application for permission on those outstanding issues has come before us today. Of course the respondent is before us and we have heard submissions from both parties.
I should explain briefly the position about the easterly boundary. Before the judge there were in contention three different boundaries. There was a boundary placed by Mr Powell, the joint expert, and this lay between two boundaries for which the parties contended. The judge preferred Mr Powell's boundary, so it is necessary to say a little about how Mr Powell reached his conclusion. His conclusion is in fact in one paragraph of his report, at page 81 of the appeal bundle. I will quote here from paragraph 6.59:
"I have looked closely at the Nationwide survey in that area and it does appear that there was a 'Cornish wall' and/or hedge along the disputed boundary and, judging by the way in which the wall follows the Defendants' land round the corner toward the railway bridge and even veers inward (heading towards where house number 21 now stands) , it is my opinion that the wall and hedge were within the Defendants' land. I cannot picture how that wall and/or hedge could have been part of the highway itself."
So Mr Powell looked at the Nationwide survey done in 1997. This was a survey produced to him by Mr Willsher. Mr Powell said that there was something akin to a Cornish wall or hedge running along or by the disputed boundary. As I have said, he assessed that that was on the defendants' land because of the way he judged the path of the Cornish hedge.
Mr Powell's opinion was that the plans in the conveyances and Land Registry plans were based on the Ordnance Survey, and were therefore of little value in assessing the true position of the boundaries. He took fixed points from the buildings at 18 and 16 Station Road, and came to the conclusion that the actual amount of land lying between Station Road was actually less than that shown on the Ordnance Survey plan. He stated that it was impossible to reach a conclusion as to the precise location of the disputed boundary. He looked at the lie of the land and as many of the natural features as possible to determine the boundary from that point of view. He used also the natural line of the boundaries, so far as they could assist him.
So Mr Powell eventually came to the view that the correct boundary was between points 15 and 23 on plan K1. He took into account features shown on photographs produced by Mr Scott. The judge, as I have said, accepted Mr Powell's evidence and Mr Willsher's argument, which was based on the plans attached to the conveyances, was rejected. Mr Scott's boundary was also rejected because it was based on natural features which the judge did not accept, and so that boundary also failed.
That then was the position regarding the easterly boundary. I turn to the question of right of way or public highway. That arose in the following circumstances. It relates to Station Road, which runs between the triangle of land whose easterly boundary I have just dealt with and the land to the west, which is divided between Mr and Mrs Scott and Mr Willsher.
Mr Scott contended that he was entitled on the true construction of the deeds to a right of way over Station Road. The judge held that this was no longer a live issue, because the area of land in question was part of a public highway. Mr Willsher contended that the road was not a public highway. But the judge pointed out that Cornwall County Council, joined as a Part 20 party to these proceedings, accepted that it was a public highway. The council said it had been a public highway since the 1830s. It had been built as part of a turnpike road running from Bodmin to St Austell. The council stated there was no evidence that the public's right to use the road was ever extinguished, and that once a road was a highway it was always a highway. It therefore remained as a highway.
The judge also referred to the evidence of Mr Sandercock, a local inhabitant aged 84 years. He said that he had used the road since his childhood, and that he had always believed that the road had been a public road for the use of the general public travelling to and from Hallew, a small village which was only accessible by Station Road.
So there are two issues on which permission is sought. The first relates to the easterly boundary and the second relates to the highway. The points were argued with the highway point first, and I will deal with that point first.
12. The position regarding the public highway is that the appellant did not challenge the evidence of Mr Sandercock, who was not cross -examined. The appellant seeks on this appeal to assert that the public use of the right of way was insufficient to establish a public right of way. He contends that the use was consistent with a private right of way, and he points out that the judge's conclusion that this was a highway could amount to a very onerous obligation. Reliance is placed on the fact that this was a turnpike road. It is said that once a turnpike road ceases to be such, the public right of way is extinguished. Reliance is placed on two authorities for that purpose, namely (NS) 174, and .
On this point, in my judgment, the evidence of Mr Sandercock was clear. His witness statement is at tab 18 of the bundle. He said that he had used the road personally on a daily basis since childhood. It was the road he used if he was to go from his home to anywhere, and that it was effectively the only way to move from Hallew to other places. He further said that from about 1946 after the Second World War until recently, he had driven a car along that roadway. He had often seen other people using the roadway. At no time had he been stopped by anyone claiming to be the owner of the roadway and saying that he was not entitled to use it. He further says that he has always believed that it was a public road for the use of the general public, and for people to travel to and from Hallew. He had never known the roadway to be obstructed.
Likewise, as I have said, the Cornwall County Council took the view that the road was a public highway. Mr Scott says in his witness statements that the public needed to use the road in order to get to Hallew. There was no other way to Hallew.
The appellant relies on the fact that under the British Transport Commission Act 1949 no rights of way could be acquired as against the vendor of land, namely the British Transport Commission, and accordingly any user since 1949 would not be relevant, in so far as it was relied on as establishing the acquisition of a right of way. However the difficulty for the appellant is that Mr Sandercock's evidence clearly goes back a long way before 1949, and it is clear that the public, on his evidence, was using the right of way. Moreover, it is not above challenge that the road was a turnpike. But even if Station Road was a turnpike, it did not necessarily cease to be a public highway if it ceased to be a turnpike. The position might well have been that it continued to be used by the public.
The ... case and the case are both distinguishable because on the facts of those cases the turnpikes ceased to be used as such after the relevant date.
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Abraham v Oakley Park Developments Ltd
...proceeds to a second stage which involves the resolution of any ambiguity. This two stage process was adopted in Willsher v. Scott  EWCA Civ 195 which was about a boundary dispute in Cornwall. The claimant argued that the boundary was identified by a map and hedge while the defendant......