Peter Douglas Fowler & Anor v James William Carver & Ors

This a reference made to the Tribunal by the Land Registry on 11^th April 2024.

The reference summarised the facts as follows:

“(a)

The Applicants have applied on form FR1 for first registration of the Property. The extent is edged red on the enclosed plan… The provisional title number is NYK493293.

(b)

The Applicant’s grounds are that they have documentary title to all of the Property.

(c)

The Objectors [the current Respondents] are the registered proprietors of the adjacent property under title number NYK455532.

(d)

The Objectors have objected to the application to register the land tinted pink on the enclosed plan on the grounds that the Applicants do not have documentary title to the land tinted pink. The objectors state that the land tinted pink is not included within the description of land conveyed to the Applicants and their predecessors in title.”

The dispute referred to the Tribunal is described in this way:

“On 10 March 2022 the Objectors lodged a Caution Against First Registration in relation to the land tinted pink on the enclosed plan. The CTN is dated 3 March 2022. The Objectors claim a right of way over the land tinted pink.”

The red land, not including the pink land, is a house and garden called Westoe. At the front, to the south, is a grouted stone wall, which separates the house and garden from an unmade track only wide enough to allow one vehicle to pass. The house and wall probably both date from 1857. On the far side of the track is a ditch which carries a creek known as Tunstall Beck. The unmade track has two tire marks down its length. On each side of the tire marks, there is a further grass strip about two foot or two foot six inches to respectively the stone wall and the Beck. The unmade track is now known as South View, but this seems likely to be a fairly modern naming. Older maps do not give the track a name.

The pink land, which is in dispute, is the area of South View, comprising the track and the grass verges, which is immediately in front of the stone wall at the front of the garden of Westoe. There are no indications on the ground (for example, by some form of paving) that the track is claimed or has historically been claimed by the owners of Westoe.

At the back of Westoe is a field. Access to the field is obtained from another track to the north, called Back Lane. Back Lane is currently in a very poor condition, but is just wide enough to allow one vehicle to go down it.

Immediately to the west of, and contiguous to, Westoe is the Respondents’ land. This goes all the way back to Back Lane and is contiguous with the field at the back of Westoe. The Respondents can thus theoretically access their land from Back Lane, although the current condition of Back Lane renders this difficult.

To the west of the Respondents’ land is a house and garden called Lonicera, which was probably built in the 1930’s. At the back of Lonicera is another field, so the only access to and from Lonicera is over South View. The registered title of Lonicera notes:

“A Conveyance of the land in this title and other land dated 6 January 1971 made between (1) Robert Leonard Clark (Vendor) and (2) Adrian Carpenter and Pamela June Carpenter (Purchasers) is expressed to grant the following rights: ‘TOGETHER WITH a right of way for the Purchasers and their successors in title their agents servants and all persons authorised by them (in common with all other persons having the like right) for all purposes with or without horses carts or motor vehicles over and along the roadway coloured green on the said plan to and from the public highway.’”

Robert Leonard Clark appears to have had no connection with Westoe (see the conveyancing history of Westoe below), so this entry is of no assistance in determining whether that part of South View in front of Westoe was held by the Applicants and their predecessors in title.

To the west of Lonicera is a house and garden called Newholme, probably built in the 1960’s or early 1970’s. At the back of Newholme is another field, so the only access to Newholme is over South View. South View, once it reaches Newholme narrows into a footpath which continues westward. There is an old tree growing just beside the Beck at this point. This narrows the path, so that vehicles cannot go any further than Newholme. There is no mention on its registered title of any rights of way granted to Newholme.

There is an Ordinance Survey map of Tunstall which was revised in 1927 and published in 1929. It shows the track (including the footpath starting at the field which is now Newholme), the Beck and a strip of land to the south of the Beck. These are marked as one narrow but continuous parcel of land comprising 0.615 of an acre. The parcel is shown as ending at the eastern end of Westoe (the map has a line at that point crossing what is now South View), but there is no corresponding line at the western end of Westoe.

There is an earlier Ordinance Survey map which was revised in 1911 and published in 1919. Unlike the later Ordinance Survey map of 1927/1929, it does not demarcate parcels of land and does not note the acreage of each parcel. Its significance is that there is no line at all crossing what is now South View at any point and certainly not near Westoe.

The Applicants’ root of title, as presented to the Land Registry, is a conveyance made 16^th January 1929 between Mary and Thomas Kirkbride as vendors of the one part and

No plan was attached to the conveyance.

By a deed of 8^th December 1958 Westoe was conveyed to a Mr and Mrs Aitkin. By a deed of 31^st October 1977 the Aitkens conveyed Westoe to the current Applicants. The First Applicant, who gave evidence to me, was born in 1938, but his first knowledge of the area was on his purchase. He could give no evidence pre-dating 1977. In both the 1958 and 1977 deeds, Westoe was described as “being the same premises as are comprised in [the 1929 conveyance]”. Again there was no plan attached to either deed.

At the hearing before me, the First Applicant produced some conveyancing documents pre-dating the 1929 conveyance, going back to an abstract of title from 1851 and various intermediate deeds. I read these de bene esse before giving them to Mr Walker, who represented the Respondents, but they added nothing to description of the land in the 1929 conveyance.

James William Carver, the First Respondent, gave evidence to me. His first involvement with the land was in 2018, when he and his family purchased the adjacent field with a view to building on it. He could give no useful evidence about the land at the time of the 1929 conveyance.

The law is conveniently stated in Pennock v Hodgson [2010] EWCA Civ 873:

“7.

The opinion of Lord Hoffmann in Alan Wibberley Building Limited v Insley [1999] 1 WLR 894 is now regarded as the leading modern authority on the construction of the parcels in a conveyance….

9.

…From it the following points can be distilled as pronouncements at the highest judicial level :-

(1)

The construction process starts with the conveyance which contains the parcels clause describing the relevant land, in this case the conveyance to the defendant being first in time.

(2)

An attached plan stated to be ‘for the purposes of identification’ does not define precise or exact boundaries. An attached plan based upon the Ordnance Survey, though usually very accurate, will not fix precise private boundaries nor will it always show every physical feature of the land.

(3)

Precise boundaries must be established by other evidence. That includes inferences from evidence of relevant physical features of the land existing and known at the time of the conveyance.

(4)

In principle there is no reason for preferring a line drawn on a plan based on the Ordnance Survey as evidence of the boundary to other relevant evidence that may lead the court to reject the plan as evidence of the boundary.

10.

The long standing general principles of how to construe a conveyance underpin those points. In Eastwood v Ashton [1915] AC 900 at p. 906 Earl Loreburn said in a dispute about title to a small strip of land:-

‘We must look at the conveyance in the light of the circumstances which surrounded it in order to ascertain what was therein expressed as the intention of the parties.’

11.

Lord Parker said much the same thing in different words (see p. 913). He also said:-

‘There is nothing on the face of the indenture to show that any one of these descriptions in any way conflicts with any other. In order, however, to identify the parcels in a conveyance resort can always be had to extrinsic evidence…’ (p. 909)

‘It appears to me that of the three descriptions in question the only certain and unambiguous description is that by reference to the map. With this map in his hand any competent person could identify on the spot the various parcels of land therein coloured red. The other descriptions could only be rendered certain by extrinsic evidence…’ (p. 912)

12.

Looking at evidence of the actual and known physical condition of the relevant land at the date of the conveyance and having the attached plan in your hand on the spot when you do this are permitted as an exercise in construing the conveyance against the background of its surrounding circumstances. They include knowledge of the objective facts reasonably available to the parties at the relevant date. Although, in a sense, that approach takes the court outside the terms of the conveyance, it is part and parcel of the process of contextual construction. The rejection of extrinsic evidence which contradicts the clear terms of a conveyance is consistent with this approach.”

The Applicants were originally represented by Clark Willis Solicitors. This firm in a letter of 1^st March 2023 to the Land Registry put the argument that the pink land should be part of the register of title for Westoe in this way:

“You make specific reference to the 1929 Conveyance. Whilst it is noted that there is no plan to the 1929 Conveyance, the description of the property is, in our view, and that of our clients, entirely clear. The property is ‘bounded by hereditaments now or late belonging to Ethel Barker on or towards the North East and West and by Tunstall Beck on or towards the South. ’. We cannot

understand why, on having such a clear narrative description given, that the Land Registry remains unsure as to whether to register the track/roadway within our clients’ title. Reference to Tunstall Beck within the deeds and documents is, in our opinion, definitive and unequivocal. This clearly shows that where the property meets Tunstall Beck, is where the boundary of the property lies to the South. We note the Land Registry’s comments, questioning whether the wording of the 1929 Conveyance means that the boundary is at the point where the property meets Tunstall Beck, or otherwise.

We do not agree that this is ambiguous. It is clear that the boundary is stated to be Tunstall Beck. It is then clear that the conveyance states that Tunstall Beck is located on or towards the South. We believe that the part of description ‘on or towards the South’ is simply a description of the direction of the boundary, as opposed to the specific location of the boundary. If it was not intended that Tunstall Beck was to be the boundary, we would say that an alternate description would have been provided.”

Mr Walker puts the Respondents’ case in this way:

“42.3.

The parcels clause was limited to ‘ALL THAT dwellinghouse and garden known as Westoe House’. That description did not mention any part of the road / track South View lying to the immediate south. Had the conveyance been intended to include part of that road / track, the description would not have been limited to the ‘dwellinghouse and garden’ but would have said ‘including part of the road or track to the south’. Since those words were not included in the parcels clause, no part of South View was intended to be included in the conveyance.

42.4.

The phrase ‘… known as Westoe House’ would not naturally include a portion of road or track to the south. Rather, that road / track would be ‘known as South View’ or ‘known as a road or track to the south’.

42.5.

The only evidence of the site at the time, is a 1927 plan published in 1929. That shows a continuous black line separating South View from all the houses to the north, including Westoe House. That line must represent the front garden wall of Westoe House. That plan shows no other physical feature to suggest any part of South View was considered part of Westoe House. This supports the previous 2 points, that the ‘dwellinghouse and garden’ would not include land beyond the garden wall, and ‘known as Westoe House’ would not include an adjacent road or track outside Westoe House’s curtilage. A map revised in 1911 and published in 1919 shows the same thing. There is no other evidence from the site at the time in 1929, to indicate that any part of the track South View was intended to be included in the 1929 Conveyance.

42.6.

NB: On the 1927 map there appears to be a line across South View, to the east of Westoe House. But there is no equivalent line to the west of Westoe House. That line was probably not a physical feature, but drawn to demarcate OS plots, which are tied together on that 1927 map by numerous ‘tie’ marks across many lines on that map, but not across lines which are the end of the OS plot, and not across that line, so suggesting it was the end of an OS plot. In contrast, the previous map from 1911 does not have any such tie marks, nor OS numbers, and crucially no such line across South View. So it did not represent a physical feature in 1911. Hence the conclusion that the line probably represents the end of an OS plot.

42.7.

The phrase ‘BOUNDED … by Tunstall Beck on or towards the South

…’ does not say the land sold extended all the way to the beck. That interpretation ignores the express words ‘or towards the South’. Those words suggest the beck did not lie immediately at the border of the land being sold. Viewed in reverse, if the beck had been the intended border, the words ‘or ‘towards” could and should have been omitted…

42.8.

The phrase ‘in the occupation of the Purchaser’ cannot realistically include a road or track (South View) beyond the front garden wall.

42.9.

The 1927 plan shows South View continuing west-south-west, and marked ‘F.P.’ for ‘footpath’ by the 3rd field along. So access was had from the highway along South View by that route for other land to the west-south- west. If the 1929 conveyance had sold a Segment of South View in front of Westoe House, either (1) the vendors owned other land to the west-south-sest and would have needed to reserve a right of way for their other land to the west-south-west in the 1929 Conveyance, or (2) third parties owned other land to the west-south-west and the 1929 Conveyance should have been expressed to be subject to those third party rights of way, otherwise the vendors might have been liable for breach of covenant as to title. Neither was done. Which indicates that no segment of South View was being sold.”

In my judgment the points made by Mr Walker are compelling.

The difficulty with the argument made on the Applicants’ behalf is that is concentrates solely on the words “bounded… by Tunstall Beck on or towards the South”, whereas equally important is the words “which said hereditaments are in the occupation of the Purchaser”. It is in my judgment inherently improbable that the track was “occupied” by Elizabeth Kirkbride, when (as can be seen from the 1911/1919 and 1927/1929 maps) it was clearly in use to gain access to the land to the west of Westoe. The mapping conventions used in the 1927/1929 map reinforce this implication of fact. The maps in my judgment show that the surveyors in 1911 and 1927 did not consider that any part of the track and verges was part of Westoe.

Further, if (as I find on balance of probabilities is the case) the track had no name, then the use of “Tunstall Beck” as a descriptor was sensible with “towards the South” identifying a deliberate linguistic vagueness as to the precise boundary, so that the actual boundary had to take geographic features, like the stone wall, into account.

The Applicants’ solicitors also overlook the start of the description of the land conveyed in 1929, which is of the “dwellinghouse and garden known as Westoe House”. It must be remembered that the stone wall at the front of Westoe probably dated from 1857 (this was the First Applicant’s evidence), so there would have been a clear demarcation between the garden of Westoe and the trackway in 1929. I agree with Mr Walker’s submission that the conveyancer in 1929 would have added words referring to the track, if a conveyance of the track was intended.

Accordingly I find as a matter of mixed fact and law that the 1929 conveyance did not convey the pink land.

I shall direct that Chief Land Registrar that the land tinted pink is not included within the description of the land conveyed to the Applicants and their predecessors in title, so that the Respondents’ objection to the registration of the pink land as part of the red land succeeds.

The order giving effect to this determination includes directions as to costs.