Strachey v Ramage

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.

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 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.

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.

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.

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].”

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.

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.”

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.

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 fence, there being a metal post at that point) and then proceeds in a gentle south-eastern curve to the south-western corner of the Trenawin kitchen, before then turning south. On his case, some two-thirds of the fence is within Trenawin and the remainder is within the fields. If the parties to the 1988 conveyance had recognised the boundary as being as Mr Ramage asserts, clause 4 would have made no sense. Save for the granite post and the metal post, through which the line of the boundary is said to pass, there is nothing on the ground providing any support for the boundary line asserted by Mr Ramage.

How was Mr Ramage able to advance such a case? The answer (or part of it) is that the plan attached to the February 1988 conveyance appears to show the boundary between Trenawin and the fields as lying on a line different from that followed by the fence and as generally following a line roughly approximating to the boundary line he asserts. Its northerly point (marked A) appears to approximate to the east end of the Cornish hedge, from which it proceeds south for an indeterminate length to point B, at which point it performs a gentle turn east-south-east to a point approximating to the north-west corner of Trenawin’s kitchen, before then curving in a southerly direction towards a letter D, south of the south-western corner of the kitchen. The letter C appears on the plan to the east of the D (clause 4 of the conveyance referred to the gate there). There is, however, on the face of it, an apparent inconsistency between Mr Ramage’s claimed boundary and that shown on the conveyance plan, namely that the latter reaches Trenawin’s kitchen at what is apparently a more northerly point than the former. Mr Penrose’s evidence was that the boundary line shown on the conveyance plan is inaccurate, but he did not remember noticing the error at the time of the sale to the Stocks. He later sold the fields to Mr Eustice and said that in the interim no-one suggested that the boundary fence he had created might be in the wrong place.

A boundary line following the course asserted by Mr Ramage would make it impossible for Ms Strachey to enjoy tractor access to her barns from the east without trespassing on Trenawin: no such access could be obtained to the north-facing entrance of the southern barn; and no such access at all could be obtained to the northern barn. The dispute between the parties is therefore a matter of practical importance to her. She wishes to continue to enjoy the access that she enjoyed following her purchase of the fields in 2001. From her viewpoint, this is not a case of going “to gain a little patch of ground that hath in it no profit but the name” (cf Lord Hoffmann’s allusion in Alan Wibberley Building Limited v. Insley [1999] 1 WLR 894, at 895G to H). Mr Ramage’s practical interest in asserting a title to land to the west of the fence is that it will afford him access to the field he owns to the north via a gap between the fence and the boundary as he asserts it to be. He does, however, have alternative access to that field and does not need to use the disputed land for that purpose. There was an issue at the trial as to whether, at the time of the February conveyance, there was any equivalent gap lying to the west of the northern end of the fence. The judge made no finding as to that, and it was anyway not a consideration that played any part in the argument before us.

Reverting to the story, Mr Eustice purchased the fields from the Penroses by a contract dated 19 August 1988, with completion on 19 September 1988. The evidence did not include a copy of the conveyance to him although it did include certain correspondence and drafts leading up to it. On 12 August 1988 Mr Eustice’s solicitors wrote to him saying that they had agreed the terms of the contract with Mr Penrose’s solicitors and explaining that he was to be responsible for the repair and maintenance of the fence between A, B and C on the contract plan, the gate between points C and D, and the field gate between points E and F. This was a reference to the fence erected in January 1988, for which hitherto the Penroses had assumed repair and maintenance obligations. There was also in evidence a draft of the proposed conveyance to Mr Eustice, bearing in manuscript the legend “approved as drawn” and an instruction to prepare an engrossment of it. It includes an indemnity covenant by Mr Eustice to observe and perform the Penroses’ fencing covenant in the February conveyance (clause 4) and described the property conveyed to Mr Eustice as:

“ALL THOSE closes of land formerly forming part of Trenawin Farm Trenawin Lane Gwinear Hayle in the County of Cornwall being part of enclosure numbere 265 and the whole of enclosures 266 267 and 319 on the Ordnance Survey map for the Parish of Gwinear – Gwithian (2^nd edition 1908) and for purposes of identification only edged red on the plan attached hereto together with the buildings in the area hatched black thereon and the fences and gates mentioned in the Second Schedule hereto [that Schedule referring to the clause 4 covenant in the February conveyance].”

The plan attached to the conveyance to Mr Eustice, in evidence at the trial, shows the relevant boundary as following a red line not obviously identical to that of the boundary line on the February 1988 conveyance. It descends in a straight southerly line from its northerly starting point A, proceeds through point B and then, at a position too imprecise to identify, sweeps in a curving south-easterly direction towards a point lying south of the south-western corner of Trenawin’s kitchen at points C and D. Mr Eustice’s evidence was that he did not remember noticing that the boundary on his conveyance plan differed from that which he had helped to mark out on the ground by the erection of the fence.

The title to Trenawin was registered at HM Land Registry on 25 January 1993 under Title No CL85921. The filed plan shows the relevant part of the boundary as a straight line dropping due south to the north-east corner of the southern barn, then turning east in an approximately straight line to an imprecise point on the western wall of Trenawin’s kitchen, then turning due south before again turning due east. In effect, the boundary is shown as comprising four approximately straight lines. It can be said to approximate broadly to the boundary line shown on the plan attached to the February 1988 conveyance.Mr Ramage became registered as the proprietor of Trenawin on 25 November 1996, having purchased from the successors in title of Mr and Mrs Stocks. The filed plan disclaims that it shows the exact line of the boundaries, asserting that it claims only to show their general position. This reflects the so-called “general boundaries” rule, contained at the relevant time in rule 278 of the Land Registration Rules 1925:

“(1)

Except in cases in which it is noted in the Property Register that the boundaries have been fixed, the filed plan or General Map shall be deemed to indicate the general boundaries only.

(2)

In such cases the exact line of the boundary will be left undetermined – as, for instance, whether it includes a hedge or wall and ditch, or runs along the centre of a wall or fence, or its inner or outer fence, or how far it runs within or beyond it; or whether or not the land registered includes the whole or any proportion of any adjoining road or stream. …” (Emphasis added).

In April 1996 Mr Eustice transferred the fields to his wife, following which, on 1 May 1996, her title was registered at HM Land Registry under Title No CL115630. The proprietorship register records the personal covenant in relation to the boundary fence set out in clause 4 of the conveyance of February 1988. The filed plan shows the boundary as following the like (approximately straight) lines as does the filed plan on the title to Trenawin. In the case of this plan, however, the letters A, C, D, E and F are included (compare clause 4 of the February conveyance). Point A is the northerly starting point of the boundary. Points C and D are shown lying either side of the boundary line, at a point to the south of the line of the western wall of Trenawin. As with Mr Ramage’s title, and for like reasons, the filed plan contains the like disclaimer as to the boundary lines being exact.

Ms Strachey became the registered proprietor of the fields on 13 September 2001, having purchased from Mrs Eustice. Mr Eustice’s evidence was that, if the plan on the registered title was an accurate representation of the plan attached to the September conveyance, there was “clearly an area of land … between the barns and the buildings on Trenawin which was not in my title, but which I occupied and used continuously throughout the time that I either owned or occupied the fields.” The judge agreed with that observation, although it can perhaps be regarded as one that assumed that the filed plan purported show the exact boundaries of the land comprised in the registered title, which it did not. Mr Eustice’s evidence was that neither Mr nor Mrs Stocks, nor anyone, ever suggested to him that the boundary fence was in the wrong position. He was surprised when Ms Strachey’s solicitors showed him the plans on the registered titles.

Also in evidence was the filed plan of the registered title (No. CL174594) of a neighbouring property, Trevaskis Farmhouse. That shows Trenawin and the fields and identifies a line marking a physical boundary between them. The relevant part of that line bears no relation to the line shown on the filed plans of their own respective registered titles, but apparently follows the course of the fence erected in 1988, as Mr Eustice agreed. Ms Strachey’s position is that this line represents the true boundary. Her evidence was that, until September 2005, when Mr Ramage indicated that he proposed to move the fence so as to put it more in line with the boundary shown on the registered title of Trenawin and the fields, she had gained access to the two barns from their east without any interruption. She has used them for a variety of purposes but most regularly for housing cattle. Her case, consistent with that of Mr Penrose and Mr Eustice, was that access from the west is difficult. Mr Ramage removed part of the fence in January 2005, without Ms Strachey’s consent, and Ms Strachey then commenced her claim in the same month.

The contest at the trial was, therefore, as to whether the relevant section of the boundary between the fields and Trenawin followed (a) the imaginary line asserted by Mr Ramage, or (b) the line of the fence erected in January 1988. The judge’s view was that the parcels clause in the February conveyance was clear and provided an answer in favour of Mr Ramage, a conclusion at which he arrived by two alternative processes of reasoning. He said the parcels clause incorporated the plan, albeit it was qualified as being “for the purpose of identification only”. But, looking at the plan, he said:

“I see a boundary forming, between points A B and C, 2 sides of a rectangle. I have no difficulty in saying that the shorter side of the rectangle is at its greatest extent at least 2 and getting on for 3 times the width of Mr RAMAGE’s barn. I find myself agreeing with Mr Eustice in the passage quoted above. The boundary is certainly not where the Claimant says it is.”

I do not fully understand the relevance of the comparison the judge made with the width of Mr Ramage’s barn, a structure standing perhaps some 15 feet to the east of the fence and parallel with its northern, straight section. His reference to Mr Eustice was to the latter’s comment, already mentioned, as to his interpretation of the land registry plan for the fields. The judge was therefore silently also saying that his interpretation of the February conveyance plan was endorsed by the filed plan on the fields’ registered title.

The judge’s alternative route to the same conclusion was based on the application of a principle referred to by Lord Hoffmann in Alan Wibberley Building Ltd v. Insley [1999] 1 WLR 894. Lord Hoffmann there explained, at 896, that plans “for the purposes of identification only” cannot be relied upon as delineating the precise boundaries and that anyway such plans are often useless for any purpose except general identification. He continued:

“It follows that if it becomes necessary to establish the exact boundary, the deeds will almost invariably have to be supplemented by such inferences as may be drawn from topographical features which existed, or may be supposed to have existed, when the conveyances were executed.”

Applying that principle, the judge said:

“When, here, I imagine myself standing in the mowhay alone [the area between Ms Strachey’s barns and the fence] and with only the Penrose/Stocks transfer [sic] and the incorporated plan to guide me it would be clear that point A was the eastern end of the Cornish hedge, point B the north Eastern corner of the Southern Dutch barn, where the granite stone stands, and point C is the metal gate post – all as shown on Mr Ramage’s plan attached.”

For those alternative reasons, the judge held that the boundary line was that for which Mr Ramage contended and he rejected Ms Strachey’s claim to have a paper title to the disputed land.

The judge then considered her alternative claim based on adverse possession. He recorded that Mrs Gowling conceded that that claim must fail unless the relevant adverse possession started no later than 2 October 1988. The reason for that concession was that the Human Rights Act 1998 came into force on 1 October 2000. At the date of the trial, the legal position favoured by the European Court of Human Rights was that a law of England and Wales permitting the loss of land by adverse possession operated in violation of Article 1 of Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”). Mrs Gowling’s concession was that, unless Ms Strachey could show that she had defeated the paper title prior to the coming into force of the 1998 Act, her claim must fail.

The judge considered first the question when, if at all, possession of the disputed land was assumed by Ms Strachey’s predecessors in title so as to start time running against the Stocks. He declined to regard Mr Penrose as being in such possession following the February conveyance, saying that although it was he, if anyone, who was in adverse possession prior to the Eustice conveyance on 19 September 1988, he had heard no evidence of the requisite animus on Mr Penrose’s part. He said he would in any event have “construed his intentions as somewhat equivocal – conveying the Disputed Land to the Stocks, as I have found, and immediately trying to take it back.” The judge said it followed that the critical period was 19 September 1988 (the date of the conveyance of the fields to Mr Eustice) to 2 October 1988. He referred to Mr Eustice’s evidence that the disputed land was an area which he “… occupied and used continuously throughout the time that I either owned or occupied the Fields.” The judge said, however, that he had “heard no evidence of specific acts carried out on the mowhay during the first 2 weeks of his possession which could conceivably start time running.”

The effect of that finding was that, because of Mrs Gowling’s concession, the adverse possession claim failed: because even if adverse possession was assumed by Mr Eustice immediately after 2 October 1988, the 12-year period would expire after the coming into force of the 1998 Act. The judge made no clear finding as to whether, if ever, Mr Eustice assumed possession of the land so as to cause time under the Limitation Act 1980 to start running. The nearest he came to doing so was to say that “Mr Eustice has done all the adverse possessing, if such it was, of the Disputed Land.” The judge found that in any event Mr Ramage’s proven activities, corroborated by Mrs Ramage, in relation to the disputed land were sufficient to stop time running. Those activities were set out in the further information provided by Mr Ramage, which alleged (and the judge found proved) a variety of activities carried out by Mr Ramage and his family on the disputed land since 1996, including (i) trimming trees, shrubs and brambles, (ii) storing items, including a water trough, (iii) passing over the land with horses and ponies, grooming them whilst tied to the fence, and allowing them to graze, (iv) use as a children’s play area, (v) pumping water on to the land for well-testing purposes, (vi) erecting a tent, (vii) picnicking, (viii) walking dogs and leading ponies, and (ix) parking. The judge said he was particularly impressed by Mr Ramage’s maintenance and use of the opening at the northern end of the disputed land into the northern field, which belongs to Mr Ramage. The judge said these activities “were an assertion of ownership sufficient to stop time running.”

On 30 August 2007, subsequent to the judge’s judgment, the Grand Chamber of the European Court of Human Rights held, contrary to the earlier views of the Court, and by a majority of 10 to 7, that the provisions of the Limitation Act 1980 by which title to land could be lost by adverse possession involved no violation of Article 1 to Protocol No. 1 to the Convention (J.A. Pye (Oxford) Ltd and Another v. United Kingdom [2007] ECHR 705). This court (May, Arden L.JJ and Sir Martin Nourse) recently followed that decision in Ofulue and Another v. Bossert [2008] EWCA Civ 7.

I deal first with Mrs Gowling’s criticism of the judge’s rejection of Ms Strachey’s claim that the relevant boundary was marked by the line of the fence erected in January 1988. Her submission was that an application of the correct principles as to the interpretation of conveyances pointed to the conclusions (i) that the relevant part of the western boundary of the land conveyed to the Stocks by the February conveyance was marked by the fence erected in January 1988, (ii) likewise, the relevant part of the north-eastern boundary of the fields conveyed to Mr Eustice in September 1988 was marked by the same fence, and (iii) although in the meantime Mr Ramage and Ms Strachey, as the respective successors in title of the Stocks and Mr Eustice, have acquired registered titles in place of the unregistered titles of their predecessors, they are still respectively the owners of the same parcels of land, separated by a common boundary represented by the fence. In my judgment, Mrs Gowling’s submissions were correct. With respect, I regard the judge as having misdirected himself as to the applicable principles, with the result that he arrived at the wrong answer. The principles appear to me to be as follows.

The story starts with the unregistered conveyancing events of 1988 and the first question before the judge was what, on the true construction of the February conveyance, was the relevant boundary of Trenawin. That required a consideration of the February conveyance in the context of the surrounding circumstances in which it was granted, and having regard also to any evidence properly admissible for the purposes of its interpretation. It is a statement of the obvious that the crucial provision in the conveyance was the parcels clause, since it was there that the parties identified the land being conveyed. It is, however, fundamental that the parcels clause in a conveyance should not be considered in isolation from the remainder of the document. It is a general, and basic, principle of the construction of documents that questions of interpretation should be answered by considering the document as a whole, since only then can the provision giving rise to the question be seen in its proper context. There can be no reason for this principle not to be equally applicable in relation to the interpretation of a conveyance for the purpose of identifying the limits of the land conveyed by it. It finds express support in the judgment of Buckley LJ in Wigginton & Milner v. Milner Ltd v. Winster Engineering Ltd [1978] 3 All ER 436, at 445:

“When a court is required to decide what property passed under a particular conveyance, it must have regard to the conveyance as a whole, including any plan which forms part of it. It is from the conveyance as a whole that that intention must be ascertained.”

Having said that, I recognise that in many cases it will be the parcels clause alone that will provide the required help. The remainder of the conveyance will often provide none at all. In the present case the parcels clause provided a verbal description of the land conveyed by describing it as being in a particular parish in Cornwall and as comprising parts of four enclosures on a 1908 Ordnance Survey sheet. It then referred to the land as being “for the purpose of identification only edged red on the plan …”. It then described the rights being granted together with the land.

The formula “for the purpose of identification only” is one whose use is time-honoured. Its ordinary sense is that a plan so described is intended to do no more than identify the position and situation of the land: it is specifically not intended to identify its precise boundaries. The use of such a plan is therefore strictly only appropriate for a case in which the verbal description in the parcels identifies the limits of the land with adequate precision since it is a formula which indicates that the verbal description is intended to be decisive in that respect. Such a plan “cannot control the parcels in the body of any of the deeds” (Hopgood v. Brown [1955] 1 WLR 213, at 228, per Jenkins LJ); it “cannot therefore be relied upon as delineating the precise boundaries and in any case the scale is often so small and the lines marking the boundaries so thick as to be useless for any purpose except general identification” (Wibberley, supra, per Lord Hoffmann).

The use of this formula – “for the purpose of identification only” -- is to be contrasted with the case in which the parcels clause gives a verbal description of the land but also refers to the land as being “more particularly delineated” on the plan. In such a case, in the event of any uncertainty as between the words and the plan, the latter will ordinarily prevail over the words and will control the verbal description (see, for example, Wallington v. Townsend [1939] 2 All ER 225, at 235D to 236H). Finally, I should not overlook the practice of many conveyancers -- no doubt happily innocent of the relevant principles -- who used to hedge their bets by introducing the plan by an incorporation of both formulae, a subject on which Megarry J commented famously in Neilson v. Poole (1969) 20 P & C.R. 909, at 916. There is, however, no need to discuss that for present purposes.

Having drawn the well-recognised difference of legal effect as between the two formulae commonly used in conveyances to introduce a plan, I would nevertheless supplement it with the self-evident cautionary truth that every case of course turns on its own facts. In any case the task of identifying the parcels of land conveyed will require an interpretation of the particular conveyance against the background circumstances in which it was made; and the function of the court will be to use all admissible material in order to arrive at the correct answer. This is well illustrated by, for example, the Wigginton case, to which I have already referred. In that case the verbal description in the parcels clause was too imprecise to identify the boundaries of the land in dispute, and the only means of doing so was to have recourse to the accompanying plan, even though it was stated to be “for the purpose of identification only”. This court declined to accept the proposition that the application of principle required it to reject recourse to the plan for such use. Bridge LJ said, at page 447:

“I cannot think that any of the judicial pronouncements on this subject to which we were referred in argument and which have been cited in the judgment of Buckley LJ were made in contemplation of a case where the boundary shown on a plan ‘for the purpose of identification only’ is the sole means which the conveyance affords to indicate where the boundary is intended to be drawn. To refer to the plan in such a case in order to ascertain the boundary allows the plan merely to elucidate, not to control, the parcels. The ascertainment of boundaries being an integral part of the process of identifying the land conveyed, I cannot see why, as a matter of language, the qualifying words ‘for the purpose of identification only’ should inhibit the use of the plan for this purpose when no other means is available by which the relevant boundary can be ascertained.”

Returning to the present case, the judge was faced with a parcels clause whose language made little attempt to identify with particularity the boundaries of the land conveyed. The land was simply described as a dwellinghouse and buildings comprising parts of four numbered enclosures identified on a 1908 Ordnance Survey sheet and known as 8 Trenawin Lane, Gwinear, adding of course “as the same is for the purpose of identification only edged red on the plan ….” The bulk of the red edging on the attached plan followed what I presume to be hedges or fences between the enclosures. But the crucial part of the red edging with which this litigation is concerned did not obviously follow any such hedge or fence. In particular, it did not, on its face, follow the line of the new fence which had been erected just a few weeks before the February conveyance. Nor did it follow the line of any other physical boundary on the ground.

What, therefore, was the judge supposed to do? It perhaps can be said that, as regards the section of boundary in dispute, he was in no better position than the court in Wigginton. The verbal description in the parcels clause was, by itself, insufficient to identify the relevant boundary. Was the judge wrong, therefore, to use the plan in the way he did in order to identify the boundary? In my judgment he was, for two related reasons.

The first is that he failed to construe the parcels clause in the context of the conveyance as a whole. In particular, he omitted to have regard to clause 4. That proclaimed that there was a “boundary fence” between points A and C on the annexed plan and that the whole of it belonged to vendors, the Penroses, who retained the fields following the conveyance to Mr and Mrs Stocks. The Penroses also covenanted to repair the fence. As I have said, that can only have been a reference to the fence erected in January 1988; and the clause expressly stated it to be a “boundary fence”. That is obviously what the conveyance was acknowledging it to be. Moreover, the judge’s declaration as to the line of the boundary (most of which fell well to the west of the fence) would have made it impossible for the Penroses to have lawful access to the fence in order to perform their repairing covenant. If the parties to the 1988 conveyance had intended the boundary to be along the line favoured by the judge, then (a) it would have been absurd for the Penroses to have retained the ownership of a section of fence that was squarely within the Stocks’ property; but (b) if the parties are to have such an absurdity attributed to them, it would also have been necessary for the Penroses to have reserved an easement of access to that section of the fence in order to be able to perform their repairing covenant lawfully. In my judgment the judge fell into error by failing to construe the parcels clause in the context of the conveyance as a whole, clause 4 of which provided the answer to the question before him, one which could not be trumped by reference to a plan “for the purpose of identification only”.

Quite apart from this, there was clear authority in this court which underlined why the judge should have recognised the fence as marking the boundary. In Webb v. Nightingale, 8 March 1957, unreported, the conveyance plan was similarly “for the purpose of identification only” but the conveyance had been preceded by the staking out of an agreed boundary which was there for all to see. There was an apparent discrepancy between the conveyance plan and the line of the staked out fence. Denning, Romer and Parker L.JJ had no difficulty in concluding that the evidence on the ground superseded any different impression that might be derived from the conveyance plan and that it was that evidence that identified the true boundary. That approach was followed and applied by Foster J in Willson and Another v. Greene and Another, Moss Third Party [1970] 1 WLR 635, which contains useful citations from Webb. In my view it is an approach that is also endorsed by Lord Hoffmann in the passage from his speech in Wibberley that the judge quoted. For reasons I do not understand, the most relevant topographical feature, namely the newly erected fence, is one the judge chose to ignore.

For Mr Ramage, Mr Sheridan submitted that the correct approach to the interpretation of the February conveyance was identified by this court in Scarfe v. Adams [1981] 1 All ER 843. That case arose out of some registered conveyancing of whose quality the court was critical. The plan in question did not involve the use of the phrase “for the purpose of identification only”. Mr Sheridan relied on the proposition in Cumming-Bruce LJ’s judgment, at 847 and 848, that:

“… the starting point is that extrinsic evidence is not admissible as an aid to [the transfer deed’s] construction unless the relevant provisions of the deed are uncertain, contradictory or ambiguous. … Where description of the parcels is totally imprecise, and there is no explicit definition of the division of the house to be found in the description of the parcels, it is appropriate to examine the rest of the instrument to see if there is to be found any aid to the meaning of the deed in relation to the division of the house.”

Mr Sheridan’s point was that the parcels clause in this case was, by itself, sufficiently precise and certain to enable the identification of the disputed boundary so that there was no justification for invoking interpretative assistance from either clause 4 or the fact of the newly erected fence itself. I disagree. The verbal description in the parcels clause was inadequate to identify the relevant boundary; and by incorporating a plan described as “for the purpose of identification only”, the parties were indicating that the plan could not be used to identify it either. This was, therefore, a case in which, as regards the disputed boundary, the parcels clause was “totally imprecise”, and Cumming-Bruce LJ’s words endorse the recourse to clause 4 that I would favour. In addition, Webb and Willson are solid authorities for also having regard to the existence of the newly erected fence.

Secondly, Mr Sheridan placed reliance on the more recent decision of this court in Beale v. Harvey [2003] EWCA Civ 1883. In my judgment, that decision is of no assistance for present purposes. It again concerned some registered conveyancing that had gone wrong. The relevant reasoning is to be found in [24] to [28] of Peter Gibson LJ’s judgment (with which Hale and Rix L.JJ agreed), in which the Lord Justice made plain that the key to the decision was that the “property transferred was defined by reference only to what was shown edged red on the plan.” It was, therefore, analogous to a case in which the parcels clause described the relevant land as “more particularly delineated” on the plan. It lends no help to this case in which the verbal description in the parcels clause was imprecise and the plan was “for the purpose of identification only.”

In my judgment, therefore, the judge was wrong to dismiss Ms Strachey’s claim that the February conveyance identified the fence as marking the relevant boundary between Trenawin and the fields. He ought to have held that it did and, as an inevitable consequence, that when the fields were conveyed to Mr Eustice in September 1998 their relevant boundary was similarly marked by the fence. When the titles to Trenawin and the fields were subsequently registered, the filed plans on each title ought similarly to have shown the relevant boundary as following the line of the fence, whereas in fact each shows it as lying to the west of the fence, as I have earlier endeavoured to describe. But of course the boundary so shown did not purport to be the exact line of the boundary, it purported to show no more than its general position; and that position was along a line which was marked by no distinguishing feature on the ground. So far as material, it purported to go south from the Cornish hedge to the north-east corner of the southern barn, and then east towards the Trenawin. Insofar as the filed plans on the registered titles do not show the boundary as following that fence, they are in error. They have apparently put the boundary in the wrong place.

Mr Sheridan’s further submission was that, accepting (contrary to his primary submission) that the February conveyance did identify the fence as marking the relevant boundary, the manner in which the titles to Trenawin and the field were subsequently registered shows that Mr Ramage has become, by virtue of his registered title, the proprietor of a material piece of land lying to the west of the fence, that land being at its narrowest point some 12 feet in width and, at it widest point, some 24 feet. That is the land now in dispute and he said it follows that Ms Strachey has no title to this area at all. She may have won the battle of the February conveyance, but the nature of the subsequent registrations of the respective titles has cost her the war.

I consider that the answer to that submission is to be found in the decision of this court in Lee v. Barrey [1957] Ch 251. In that case the defendant had acquired a particular plot identified in the transfer to him, whereas his registered title showed him as apparently owning rather more land. The plaintiff, who claimed that the extra land was part of his title, sued him in trespass. The defence was that the filed plan on the defendant’s title was a complete answer to the claim because it showed the defendant as the registered proprietor of the disputed land. The relevant discrepancy between the transfer plan and the filed plan was about 10 feet and, according to Lord Evershed MR at page 260:

“… it may even be that if another method of measurement were adopted, the extent of the divergence would be substantially greater. Since the whole frontage to Oakleigh Park South is only 42 feet, it can be seen at once that this is not a mere trifling divergence.”

The plaintiff succeeded. The filed plan did not have the effect of giving the defendant more than he had bargained for and bought. Its relevant shortcoming was that it simply did not – and nor did it purport to -- define the boundaries of the defendant’s land with precision. The case was a “boundary dispute” rather than a “property dispute”, with the consequence that the “general boundaries” rule enabled the plaintiff to prove the precise line of the boundary by reference to the pre-registration transfer. Lord Evershed said, at page 260:

“I would go with [leading counsel for the defendant] this far, that a boundary dispute and a property dispute may be two things quite different. It is true that a property dispute may, and frequently does, involve boundaries, and that a boundary dispute involves in some degree a property dispute; and if the divergence is very great indeed, you may say that the matter has passed from any sensible use of the phrase ‘boundary dispute’ and becomes something else. But applying the common sense test if, as [counsel] invited us to do, you put the question here: is the plaintiff saying in truth that the defendant got the wrong property by the land certificate? I would answer the question negatively. I think, for my part, that there is no doubt that the certificate purported to give him, and gives him, the right property. What, on the evidence, it has failed to do is to indicate its boundaries with sufficient correctness and precision.

I agree with [leading counsel for the plaintiff] that s 19 and s 69 are directed to bringing registered land into the general scheme of the property legislation of 1925, and are not concerned with the sort of question which arises in this case. I further agree with [counsel] that section 76 and the rules provide, and I think provide clearly enough, that in the case of a general map or filed plan the boundaries are not intended to be more than indicated and not to be precisely defined.”

Posing the like question here, namely did Mr Ramage get the wrong property by his registered title, I would also answer it in the negative. Trenawin comprises a substantial area of land of which the area in dispute forms the tiniest of corners. The line on the filed plan which purports to delimit that corner is expressly stated as doing no more than showing the “general position” of the boundary, and not the exact line. Mr Sheridan’s argument amounts to the proposition that it marks more or less the exact line. I do not accept the argument. Insofar as the line invites an inference that the boundary is otherwise than along the line of the fence, the positioning of the line was an error on the part of HM Land Registry. But it still does not justify the conclusion that Mr Ramage has become the registered proprietor of the disputed land. It is only possible to arrive at that conclusion by assuming in Mr Ramage’s favour the very point that the general boundaries rule disclaims, namely that the boundary shown on the filed plan is the true boundary.

Mrs Gowling asks us not just to make an appropriate declaration as to the line of the disputed boundary, but also to direct an “alteration” of the register so as to correct the designation of the relevant part of the boundary as shown on the filed plans in the registered titles of each of Ms Strachey and Mr Ramage. Relief of that nature was claimed in the particulars of claim. The jurisdiction to make such an order is in paragraphs 2 and 3 of Schedule 4 to the Land Registration Act 2002, which provide, so far as material, as follows:

“2.

(1) The court may make an order for alteration of the register for the purpose of –

(a)

correcting a mistake; …

(2)

An order under this paragraph has effect when served on the registrar to impose a duty on him to give effect to it.

3.

(1) This paragraph applies to the power under paragraph 2, so far as relating to rectification.

(2)

If alteration affects the title of the proprietor of a registered estate in land, no order may be made under paragraph 2 without the proprietor’s consent in relation to land in his possession unless –

(a)

he has by his fraud or lack of proper care caused or substantially contributed to the mistake; or

(b)

it would for any other reason be unjust for the alteration not to be made.

(3)

if in any proceedings the court has power to make an order under paragraph 2, it must do so, unless there are exceptional circumstances which justify its not doing so.

(4)

in sub-paragraph (2), the reference to the title of the proprietor of a registered estate in land includes his title to any registered estate which subsists for the benefit of the estate in land.”

The effect of such an alteration would not, for reasons I have given, affect Mr Ramage’s title. It would, to adopt the apposite language of the Deputy Adjudicator (Mr Michael Mark) quoted in Derbyshire County Council v. Fallon and Another [2007] EWHC 1326 (Ch), at [26](iv), merely produce “another general boundary in a more accurate position than the current general boundary”. This is not, therefore, a case to which paragraph 3(2) applies. Subject to the “exceptional circumstances” proviso, paragraph 3(3) of Schedule 4 requires this court to make an order under paragraph 2 if it has power to do so; and there are no exceptional circumstances pointing away from the exercise of that power. I would, therefore, make an order for the alteration of the register accordingly.

This conclusion makes it strictly unnecessary to consider Ms Strachey’s appeal against the rejection of the claim that, if she was otherwise wrong and Mr Ramage had a paper title to the disputed land, she had acquired title by adverse possession. I propose to deal with this only briefly.

The premise from which this issue starts is that, by a quirk of conveyancing law, the relevant boundary was further west than the parties to the February conveyance intended: the assumed consequence is that the part of Trenawin in dispute became de facto part of the fields and was enclosed within them by the fence. Mr Eustice was, as the Penroses’ tenant or licensee, in possession of the fields as from the February conveyance; and I cannot see why, as from the date of that conveyance, he should not be regarded as having had both factual possession of the disputed land, and also the intention to possess it, sufficient to cause time to start running against Mr and Mrs Stocks, although during his tenancy or licence it would run in favour of his landlords, the Penroses.

Once he bought the fields, on 19 September 1988, Mr Eustice’s adverse possession would have continued to run in his own favour, and then in his wife’s when he transferred the fields to her in 1994. The judge said, however, that he had heard “no evidence of specific acts carried out in the mowhay during the first 2 weeks of his possession [from 19 September to 2 October 1988] which could conceivably start time running.” More generally, the judge also said that “Mr Eustice has done all the adverse possessing, if such it was, of the Disputed Land.” He also said that if he was wrong in declining to find that any adverse possession (if any) pre-dating 2 October 1988 -- that was the latest start date if Convention problems were to be avoided -- Mr and Mrs Ramage had asserted sufficient acts of ownership to stop time running, and I have described what they were.

If it were necessary to do so, I would be disposed to conclude that the judge was wrong not to find positively that, at the latest from 19 September 1988 until 2001, Mr Eustice had both factual possession of the disputed land and also an intention to possess it, and that his possession was sufficient to cause time under the Limitation Act 1980 to run against Mr and Mrs Stocks and their successors. I would probably also be disposed to hold that the judge was wrong to regard Mr Ramage’s acts of ownership as causing time to stop running. Acts of ownership are not enough for this purpose. Nothing less than the resumption of exclusive possession (Bligh v. Martin [1968] 1 WLR 804, at 812) or the issue of proceedings to recover it will do, and Mr Ramage had done neither before the 12 years expired.

For reasons given earlier, however, I consider that Ms Strachey is entitled to succeed on her first ground of appeal, so that it is unnecessary to express a final view on her alternative ground. I would allow the appeal, set aside the judge’s judgment and make an appropriate declaration as to the line of the disputed boundary and a consequential order for the alteration of the parties’ respective registered titles. The order must be in a form that HM Land Registry can easily give effect to and, if my Lords agree, I would invite the parties to agree a form of order for that purpose.

I agree.

When Lord Hoffmann in Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894, 895, spoke of litigation conducted with the zeal of Fortinbras’s army, he will have had in mind, like Rimer LJ, the

With these misgivings, but without any doubts as to the correctness of the outcome and the reasons for it, I agree with the judgment of Rimer LJ.