Willsher v Scott & Ors

This is an appeal against the decision of HHJ Wassall given at the Truro County Court in a reserved judgment on 10 December 2004. Permission to appeal, as to part only of the decision, was granted by Chadwick LJ on consideration of the papers on 23 June 2005. I will call the issue on which he gave permission the “northern boundary issue”. On 26 October 2006 after a hearing on notice this court (Arden and Dyson LJJ) granted permission on a further point, which I will call the “eastern boundary issue”. There was a third point on which the judge’s decision was sought to be appealed, “the public highway issue”; but this court refused permission in relation to that as had Chadwick LJ. I shall of course explain these various issues in due course.

The case involves a boundary dispute. It concerns land at Bugle, St Austell, in Cornwall. The appellant is Mr Willsher who was the claimant at first instance. The respondents are Mr and Mrs Scott, who were the defendants. A plan (page 51 in the bundle) attached to the amended particulars of claim helps to show the factual position in outline: I will attach it also to this judgment marked “Plan A”. There are three relevant areas of land. Mr and Mrs Scott bought the land edged blue on Plan A from the British Railways Board in 1968. I will refer to it as “the blue land”. Mr Scott bought the land edged green from the British Railways Board in 1986: “the green land”. Mr Willsher bought the land edged red from the British Railways Board in 1996: “the red land”. The red land includes a roadway coloured brown on Plan A.

There were three questions disputed before the judge. (1) Where was the boundary line between the red land and the blue land? This was the northern boundary issue, upon which Chadwick LJ granted permission. The judge below decided it in favour of the contention advanced by Mr and Mrs Scott. (2) Where was the boundary line between the green land and the red land? This was the eastern boundary issue, upon which Arden and Dyson LJJ granted permission to Mr Willsher. On this issue the judge rejected the rival contentions put forward by Mr Willsher and the Scotts and held that the boundary lay along a line put forward by a jointly instructed expert, Mr Powell. (3) Did the Scotts enjoy a right of way over the roadway in the red land to a property, 23 Station Road, which lay within the green land? The judge held that there was a public right of way in any event. There is no permission to appeal against this finding. I should say that the judge’s findings on the first two issues, which are those in contention before us, are expressed in a marked plan attached to the drawn order of the court.

In relation to this, two pieces of land at the border (I use that expression neutrally, meaning to beg no questions) between the blue land and red land were at the centre of the dispute. The expert Mr Powell produced a plan – Plan J (page 101) – on which these two pieces are respectively marked Y and Z and shaded yellow. Y is an area of about 7m² and Z is an area of about 48m². The judge decided that both Y and Z belonged to Mr and Mrs Scott. Mr Powell for his part (report of 26 July 2004, paragraph 6.63) had attributed Y to the Scotts and Z to Mr Willsher. The attribution is shown on a larger plan produced by Mr Powell, Plan K1.

The starting point here is to identify the respective contentions of the parties on the northern boundary issue. There is a bank along this boundary (again I beg no questions in using that expression). It runs parallel to and south of an old railway siding. Mr Willsher contended that the boundary ran along the top of the bank, and so more to the south. The Scotts contended that it ran along the bottom of the bank, and so more to the north. Mr Scott constructed a block wall in 2001, and the judge’s finding at least as regards area Z effectively meant that the boundary coincided with the wall.

I should read paragraphs 30-34 of the judgment in which the northern boundary issue is addressed:

I will return to the judge’s reasoning in due course. I should next set out the relevant terms of the 1968 conveyance, by which the blue land was transferred to the Scotts. The provision effecting the transfer, clause 1, so far as material reads as follows:

The first point taken by Mr Douglas QC for Mr Willsher is that the judge’s conclusions on this issue involve a contradiction. At paragraph 32 he held that the boundary was as described by Mr Powell. This finding appears to relate to the whole of the disputed northern boundary, and not just area Y. But at paragraph 33 he accepts Mr Scott’s evidence as to the correct line of the boundary, and, as I have said, he attributed area Z to the Scotts: at any rate the plan attached to the court’s drawn order, which was plainly intended to express the judge’s decision, shows as much. Mr Powell, however, attributed area Z to Mr Willsher.

It is notable, I think, that the text of the judgment below in relation to the northern boundary issue has nothing at all to say about area Z distinctly. The judge’s finding on Z is only to be gleaned from the plan attached to the order. So there is no narrative reasoning to cast light on what indeed seems to be a plain self-contradiction. There is, however, an explanation of sorts at hand. The judge makes this comment at the end of paragraph 27 of the judgment:

Mr Douglas next seeks to assault the judge’s acceptance (judgment paragraph 33) of Mr Scott’s evidence “that the natural line of the boundary is and always has been the bottom of the bank rather than the mid point of the wall or bank” (judgment paragraph 30). In his skeleton argument (paragraph 12) Mr Douglas submits that this is not in truth evidence at all, but only assertion or argument. The express context of the judge’s reference at paragraph 30 to Mr Scott’s evidence is the dispute relating to area Y; but I understand Mr Scott to have been contending, in effect, that the bottom of the bank reflected the natural boundary line encompassing Z as well as Y. It is necessary to look at the evidence in a little more detail.

In his second witness statement Mr Scott refers (paragraph 45) to the obligation to erect a fence imposed by clause 3(2) of the conveyance, and continues (paragraph 46):

In his second statement, to which I have already referred, Mr Scott says (paragraph 46) that he has occupied and used the land on his side of the fence erected by him for over 30 years. He replaced some of the fence posts, and built a wall along part of the line at the bottom of the bank. Then in 2001 – and this much is common ground – he built a blockwork wall, as I have already said. He says it topped part of the earlier wall which he had erected. His primary case is that the wall followed the line of the earlier fence which was erected in fulfilment of his obligation arising under clause 3(2) of the conveyance; the fence had been put up without objection as to its position by the British Railways Board; the 3(2) obligation was plainly to fence along the intended boundary line, and that was what he did.

In support of this primary case Mr Auld on the Scotts’ behalf had a particular point to make about Mr Powell’s evidence. In his report Mr Powell was at pains to criticise the quality of the copies of the deed plans accompanying the conveyances of 1968 and 1986 which had been sent to him. Of the former he said (report, paragraph 6.34):

Mr Scott advanced a secondary case which was not addressed by the judge. It was that if (contrary to his first case) the boundary established by the 1968 conveyance did not lie along a line at the bottom of the bank and therefore on its northern side, nevertheless he and his wife had occupied and enjoyed the land so enclosed since 1968: accordingly he had obtained title to it by adverse possession no later than 1981.

Mr Willsher disputed the assertion that Mr Scott had erected a fence at the bottom of the bank. He was not, of course, on the scene in 1968; he arrived in 1996 when he bought the red land. But he clearly stated in cross-examination (transcript day 1, 32D, 43G-44B) that at that time there was no fence there, and he stated that he could walk unimpeded across the land where the supposed fence was. Mr Willsher also relied on a Nationwide survey conducted in 1997 which showed no trace of the fence said to have been erected by Mr Scott. He says there is nothing in the deed plans or other Ordnance Survey maps from 1968 onwards which records any feature on the land which might reflect or represent Mr Scott’s alleged fence.

Mr Scott accepted in cross-examination (day 2, 23B-26C) that when he bought the land in 1968 there was in the area of Y a hedge already there at the top of the bank. He also accepted that there was a fence at the top of the bank (see eg 19C), which however rotted away. This, as I understand it, was reflected on the Ordnance Survey; and so, on Mr Willsher’s case, was Mr Scott’s blockwork wall erected in 2001. At that time, but not before, the Ordnance Survey showed what was referred to in the proceedings as a “kink”, reflecting the line of the 2001 wall.

Mr Douglas submits that the position is plain enough on the Ordnance Survey maps, supported by the Nationwide survey and Mr Scott’s own cross-examination. He says that the maps showed a feature at the top of the bank, where Mr Willsher would place the boundary, before 2001. Only after the erection of Mr Scott’s wall in that year was there anything – the “kink” – to indicate a feature on Mr Scott’s asserted boundary line. Thus it is submitted that the weight of the evidence tends to prove that the original boundary was at the top of the bank. The erection of the wall in 2001 could not of course generate an adverse possession claim in Mr Scott’s hands, and there were no earlier events sufficient to do so: he points to Mr Scott’s acceptance (day 2, 19C-D) that he and his wife did not tend his garden until the late 1900s.

But there are considerable difficulties in the way of Mr Willsher’s case on the northern boundary issue. First, it is to be noted that he relies heavily, though not entirely, on what may be gleaned from the plans: in particular the Ordnance Survey maps including the one deployed as the deed plan in the 1968 conveyance. However, as both the judge (paragraph 24) and Arden LJ (judgment transcript paragraph 21) pointed out, the Ordnance Survey maps do not purport to fix or record the legal boundary between adjoining plots of land. They will mark features, such as hedges or fences, which may well in fact reflect a legal boundary, but the map will simply indicate a line down the middle of such a feature whether the boundary is in the middle or not. They are drawn to a scale of 1:2500 and the line so drawn may be out of true by +/- 2.3 metres (again, paragraph 24). Mr Powell’s evidence, accepted by the judge at paragraph 31 which I have read, was that neither the parcels clauses in the conveyances, the deed plans or the Land Registry plans could “accurately transpose the true position of boundaries onto the ground”. I take the judge to have meant that such materials (at least in the circumstances of this case) are not definitive or conclusive as to the precise boundary line.

In all these circumstances the Ordnance Survey maps offer, in my judgment, an uncertain guide as to the precise boundary line. While dealing with them I should mention a point which was largely responsible (as one sees from the reasoning of Arden LJ) for this court’s grant of permission on the eastern boundary issue. It was submitted to Arden and Dyson LJJ that while (as I have said) the Ordnance Survey maps do not purport to fix private boundaries, yet if parties to a conveyance choose to use such a map to mark the boundary they will be held to what the map shows: Fisher v Winch [1939] 1 KB 666 in this court. Mr Auld does not quarrel with this as a matter of principle. He says the difficulty is in ascertaining on the ground what is the feature the map purports to show, for the purpose of understanding what it tells about the contractual boundary. As to that, the Ordnance Survey maps are subject to the uncertainties to which I have already referred.

A further point which presents some difficulty to Mr Willsher is that, as it seems to me, the Nationwide Survey plan on which he relies needs to be treated with a little caution. The circumstances of its provenance are not entirely clear, though it seems to have come into existence (in 1997) at Mr Willsher’s behest or for his purposes. He provided it to Mr Powell, who as I understand it incorporated some of its features into his Plan K1.

But there is a deeper problem on this part of the case. On any view the Scotts were required by clause 3(2) of the conveyance to erect a fence between A and B on the deed plan. I accept (as was contended for the Scotts) that the 3(2) obligation was to fence along, and so to mark, the intended boundary line. I cannot see what other sensible purpose the obligation might have. Mr Scott’s evidence was that he built a fence accordingly, at the bottom of the bank. The British Railways Board had notice of the line of his fence and offered no objection to it. If that evidence is right it provides, in my judgment, an unassailable basis for a conclusion of the northern boundary issue in favour of the Scotts: the very conclusion reached by the judge. And on this footing the Scotts would be entitled to succeed without recourse to any claim by way of adverse possession.

But as I have said Mr Willsher disputed the assertion that Mr Scott had ever erected a fence at the bottom of the bank. The judge made no finding, certainly no express finding, on this important question of fact. What, then, is the result? Is Mr Willsher entitled to have his appeal on the northern boundary issue allowed with an order for a retrial, on the footing that the judge has reached no conclusion on a question which, if it were resolved in the Scotts’ favour, would have concluded the appeal in their favour also?

I have concluded that Mr Willsher is not so entitled. I have already held that the clause 3(2) obligation was to fence along the intended boundary line, and noted that point A on the 1968 deed plan appears to be at the northern side of the land and thus, as Mr Scott would have it, at the bottom of the bank. So the obligation to fence of itself goes some way to support the Scotts’ case. More importantly, the judge plainly accepted Mr Scott’s evidence generally, and although it is unsatisfactory that he made no specific finding about Mr Scott’s erection of a fence on his acquisition of the blue land, I think he must in truth have accepted it not least given the terms of paragraph 33 of the judgment which I have set out. It is to be noted, moreover, that there was no direct evidence to contradict what Mr Scott said about building the fence. Mr Willsher was not there in 1968. Mr Douglas relied on the plans, which are no sure guide, and his client’s evidence that there was no fence there in 1996 and that he could walk unimpeded across the land where the supposed fence was. There was, I acknowledge, a dispute as to the position in 1996; but that offers no sufficient comfort to Mr Willsher as to what had happened in 1968. And Mr Powell’s evidence is, I think, in the end no obstacle to the Scotts’ case given his comment in the letter of 10 August 2004, which I have read.

For these reasons, despite the shortcomings in the judgment, I would conclude the northern boundary issue in the Scotts’ favour and uphold the result arrived at by the judge.

Here an area of some 58m² was at stake. The relevant conveyance is that of 1986, by which Mr Scott acquired the green land from the British Railways Board. The land conveyed is described in clause 1 as follows:

The judge unequivocally accepted by Mr Powell’s evidence. This is what he said:

Mr Willsher’s case was and is that the boundary lies along the centre line of the Cornish hedge referred to by Mr Powell. (Mr Auld’s skeleton says (footnote 8) that a Cornish hedge is a stone lined earth bank, similar to a large dry-stone wall. The description is not, I think, contentious.) The Scotts’ case is that the boundary lies along the line of a ditch to the east of that line. Mr Powell’s conclusion was that it lay between the two. He located it on his plan K1 just to the east, or at the eastern edge, of the Cornish hedge as he had marked it on the plan.

The argument for Mr Willsher, as with the northern boundary issue, is heavily dependent on the deed plan. It is submitted that the plan shows a “feature” on the land which must be the Cornish hedge observed by Mr Powell; and given this court’s decision in Fisher v Winch [1939] 1 KB 666 (to which I have referred), the judge should have held that the parties, by use of the Ordnance Survey plan in the deed, intended to define the boundary by reference to the centre line of that feature. This was, in essence, the point upon which Arden and Dyson LJJ granted permission to appeal on 26 October 2006.

There was a good deal of argument at the hearing before us as to whether the “feature” referred to by Mr Powell in fact represented a Cornish hedge at all. Mr Scott (day 2, 6D-7E) said that work done by him had left a bank which looked like a Cornish hedge, but he told the judge that there was a ditch between the bank and the road; he said it could be made out in a photograph (p. 150 in the bundle). Mr Auld on the Scotts’ behalf submitted that the best candidate for the “feature” was the ditch, not the (actual or supposed) Cornish hedge. The picture is complicated by the fact that the deed plan clearly shows a line of dashes or “tadpoles” apparently representing a bank which on any view was some little distance to the west of the road and within the Scotts’ land.

In my judgment the decision in Winch by no means necessarily promotes Mr Douglas’ contention that the true boundary lies along the centre line of the actual or supposed Cornish hedge. The proposition primarily established by that case is that so far as a deed plan purports to show a boundary, the fact that the plan is a copy of the Ordnance Survey map does not detract from that function. The essence of the decision for present purposes is with respect perhaps to be found in these observations of Sir Wilfrid Greene MR:

Paragraph 38 of the judge’s judgment, which I have read, reflects paragraph 6.59 of Mr Powell’s report in which after referring to the Nationwide survey he said:

In all the circumstances I am not persuaded that the use of the Ordnance Survey map as the deed plan, together with the identification or ascertainment of the Cornish hedge, suffice in the circumstances to compel the conclusion contended for by Mr Douglas, that the boundary must be along the centre line of the hedge.

But there are difficulties in the way of the Scotts’ rival contention that the feature shown on the deed plan as marking the boundary is a ditch. Mr Auld placed considerable reliance on a photograph (page 150 in the bundle, showing Mr Scott’s mother-in-law with a child in a pushchair) taken a good many years ago which it is said shows the ditch. But it is very indistinct. In his oral evidence (transcript day 1, p. 91D), referring as I understand it to this photograph, Mr Powell said “[T]here may have been a little ditch there”. Other photographs (152, 152A) tend to suggest there was no ditch. Photograph 151 could be said to show a ditch where the green land, at its northern end, so to speak turns west towards the railway bridge; but it is not very clear. Mr Scott (day 2, 8E) said he filled in part of the ditch and the rest of it got filled in by “traffic pushing it in... the bigger lorries”. However the evidence as a whole offers, I think, insufficient support for the proposition, necessary to the Scotts’ case, that the whole length of the unbroken line marking the boundary on the deed plan represents a ditch. The photograph at 150 at best shows a ditch going no further south than where the lady is standing, and Mr Scott did not I think distinctly assert that it did.

Again, the judge has on this issue failed to deal with a potentially important question. He has made no express findings as to the existence or extent of any ditch. However, the evidence about that, for reasons I have just set out, was tenuous. In my judgment, the judge was entitled to accept Mr Powell’s evidence and apply it to the ascertainment of the legal boundary. He was not obliged, either in principle or by force of the authority of Fisher v Winch, to hold that the parties to the 1986 conveyance must have intended the boundary to lie along the mid-line of the Cornish hedge. The combination of the conveyance’s executive words (“adjoining Station Road”) and Mr Powell’s evidence operated to identify a true boundary line where Mr Powell placed it.

I would dismiss the appeal.

I agree.

I also agree.