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England and Wales High Court (Chancery Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Chancery Division) Decisions >> Avon Estates Ltd v Evans & Anor [2013] EWHC 1635 (Ch) (13 June 2013) URL: http://www.bailii.org/ew/cases/EWHC/Ch/2013/1635.html Cite as: [2013] EWHC 1635 (Ch) |
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CHANCERY DIVISION
BIRMINGHAM DISTRICT REGISTRY
Bull Street, Birmingham B4 6DS |
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B e f o r e :
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Avon Estates Ltd |
Claimant |
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- and - |
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Richard Evans (1) and Susan Evans (2) |
Defendants |
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Julian Greenhill (instructed by Rickerbys LLP) for the Defendants
Hearing dates: 2- 5 April 2013
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Crown Copyright ©
HHJ David Cooke:
" All those pieces or parcels of land together with the farm, bailiff's house cottages and farm buildings and premises being part of Oxtalls Farm situated in the parish of Old Stratford in the County of Warwick and containing an area of 131.282 acres or thereabouts. All which said premises are for the purposes of identification only more particularly delineated on the plan attached hereto and thereon edged red and more particularly described in the first schedule hereto… "
"Of course, the fact that the boundary is shown in a particular place on an ordnance map is in itself no evidence of what the true boundary is as between the parties, but where the party's title is derived from a document which refers to the ordnance map, it is necessary to look at the ordnance map and ascertain where the boundary shown on that map is truly positioned. The evidence of Mr. Emery in this case is, to my mind, quite conclusive, that in the present case the boundary of the land conveyed to the defendant's predecessor in title is positioned along the middle line of the old hedge which runs along one of the disputed boundaries, and along the fence which runs along the other disputed boundary. Those have been there for many years, and there can be no question on Mr. Emery's evidence and the other evidence in the case as to those fences and hedges, that the boundary referred to on the ordnance survey map is the centre line of the hedge and the fence. That being so, when the conveyance is looked at, the boundaries on which are traced by reference to the ordnance survey, and the acreage of which is fixed by reference to the ordnance survey, it is established beyond possibility of question what the boundary is."
" It is the practice to define the ownership of boundary features, or the responsibility for the maintenance, by inserting T marks… If, as sometimes happens, T marks appear on the plan without any reference to them in the deed, they can be no more than persuasive evidence of the ownership of the boundary features. "
" The most common marking on deed plans indicating boundary ownership, or the liability to maintain and repair it, is a T mark. T marks on a plan to a deed would normally indicate that the proprietor of the property with the red edging is responsible for the maintenance/repair of any boundary with the inward facing T marks. However the wording in the deed must also be read to obtain the necessary interpretation of the T marks in the particular deed… T marks on a deed plan that are not referred to in the deed have no special force or meaning in law. "
"There is undoubtedly a popular belief in some parts of the country which has found its way into books that the owner of a hedge is also the owner of a space outside it; sometimes said to be four feet from the base of the bank on which the hedge stands. I am not aware of any legal authority for this broad proposition…
[he then referred to cases dealing with the hedge and ditch presumption, and continued] These are, I believe, all the reported cases on the subject, and they appear to be limited to artificial ditches, and to establish a presumption that in the case of land bounded by a hedge and artificial ditch the boundary of that land extends to the further edge of the ditch. The presumption is not rested on the necessity of protecting the hedge, and any four feet or eight feet rule is only mentioned once to be rejected…
Mr. Amphlett claimed a ditch-width of about four feet as protection for a hedge, whether there was a ditch or not, or whether there was a fence at the edge of the four-feet width or not. It existed, he said, though the hedge was on a sloping bank where there was no presumption of a ditch. He thought on this common all traces of the original ditches for ancient inclosures had been lost except that there were depressions in some places. He thought the ditch width was recognized on Clent Hill Common, but could not say it appeared anywhere else. One of his witnesses thought that every owner of an agricultural fence had a ditch-width the other side of it, varying in width with the locality. In Birmingham he said it was three feet, except on commons and parish boundaries, where it was four feet, and he put its justification in the protection of the hedge. Mr. Fowler thought it made no difference whether there was a ditch or not - the owner of a grower fence always had some land outside it. This evidence does not suggest any right of the owner of a hedge over the soil of another, but apparently means that the Court must presume that where a man has erected a hedge he has erected it four feet back from the edge of his land, and therefore that the boundary of his land is that distance back from some line either the middle of the hedge or the bottom of the bank. I can only say that I know of no authority in law for such a rule, that I do not think any judge can decide accordingly without evidence, and that the evidence in this case fails, in my opinion, to establish such a rule."
"The appeal does not call for a detailed report. In the opinion of the House it raised no question of general importance in point of law, but turned entirely on the facts as to the position of the line of growers in the particular case; in the words of Lord Sumner, the case was "really one of evidence, neither complex nor novel." "
and the report:
"Their Lordships were of opinion that the plaintiff had proved his case, and that there was not sufficient evidence to establish the existence of the local custom asserted by the defendant. They came to the conclusion upon the evidence that the boundary of the common must be taken to be a line drawn along the growers of the hedge on their side next to the common and that neither the defendant nor his successor could claim the right to erect or maintain a fence outside that line."
"…the south eastern portion of field Ordnance Survey no 75…forming part of Oxstalls Farm which piece of land contains an area of one acre or thereabouts and is more particularly delineated and edged red on the plan attached hereto for the purposes of identification only…"
"2. The Purchaser hereby covenants with the Vendor that it the Purchaser for itself and its successors in title will erect and for ever after maintain a stockproof fence of a type and design to be approved by the Vendors along the boundaries marked with a T inwards on the said plan."
"Possession
40 In Powell's case 38 P & CR 470 Slade J said, at p 470:
"(1) In the absence of evidence to the contrary, the owner of land with the paper title is deemed to be in possession of the land, as being the person with the prime facie right to possession. The law will thus, without reluctance, ascribe possession either to the paper owner or to persons who can establish a title as claiming through the paper owner. (2) If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ('animus possidendi')."
Counsel for both parties criticised this definition as being unhelpful since it used the word being defined—possession—in the definition itself. This is true: but Slade J was only adopting a definition used by Roman law and by all judges and writers in the past. To be pedantic the problem could be avoided by saying there are two elements necessary for legal possession: (1) a sufficient degree of physical custody and control ("factual possession"); (2) an intention to exercise such custody and control on one's own behalf and for one's own benefit ("intention to possess"). What is crucial is to understand that, without the requisite intention, in law there can be no possession. ... Such intention may be, and frequently is, deduced from the physical acts themselves. But there is no doubt in my judgment that there are two separate elements in legal possession. So far as English law is concerned intention as a separate element is obviously necessary. Suppose a case where A is found to be in occupation of a locked house. He may be there as a squatter, as an overnight trespasser, or as a friend looking after the house of the paper owner during his absence on holiday. The acts done by A in any given period do not tell you whether there is legal possession. If A is there as a squatter he intends to stay as long as he can for his own benefit: his intention is an intention to possess. But if he only intends to trespass for the night or has expressly agreed to look after the house for his friend he does not have possession. It is not the nature of the acts which A does but the intention with which he does them which determines whether or not he is in possession.
Factual possession
41 In Powell's case Slade J said, at pp 470-471:
"(3) Factual possession signifies an appropriate degree of physical control. It must be a single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several persons jointly. Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of the land at the same time. The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed … Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so."
I agree with this statement of the law which is all that is necessary in the present case. The Grahams were in occupation of the land which was within their exclusive physical control. The paper owner, Pye, was physically excluded from the land by the hedges and the lack of any key to the road gate. The Grahams farmed it in conjunction with Manor Farm and in exactly the same way. They were plainly in factual possession before 30 April 1986."
"43 ... Slade J reformulated the requirement (to my mind correctly) as requiring an "intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow"."
"76 I consider that such use of land by a person who is occupying it will normally make it clear that he has the requisite intention to possess and that such conduct should be viewed by a court as establishing that intention, unless the claimant with the paper title can adduce other evidence which points to a contrary conclusion. ... It is in cases where the acts in relation to the land of a person claiming title by adverse possession are equivocal and are open to more than one interpretation that those acts will be insufficient to establish the intention to possess. But it is different if the actions of the occupier make it clear that he is using the land in the way in which a full owner would and in such a way that the owner is excluded.
77 The conclusion to be drawn from such acts by an occupier is recognised by Slade J in Powell v McFarlane, at p 472:
"If his acts are open to more than one interpretation and he has not made it perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner."
And, at p 476:
"In my judgment it is consistent with principle as well as authority that a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner."
In another passage of his judgment at pp 471-472 Slade J explains what is meant by "an intention on his part to … exclude the true owner":
"What is really meant, in my judgment, is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow." "
" Life would indeed be unendurable if people always enforced their rights to the ultimate: and I should be slow to regard a man who fails to dispute every possible point with his neighbour as thereby admitting or representing that what his neighbour does he does as of right. The law ought not to encourage people to be aggressive about their rights by the fear that in granting any indulgence they will be treated as having yielded up their rights. A man who puts in garden canes short of the point that he considers to be the true though unmarked boundary, in order to serve as a warning to himself and others against any arguable trespass onto his neighbour's land, ought not to be treated as having thereby represented that the canes show the true boundary. "
"I hold that the common law rule is that the lower occupier has no ground of complaint and no cause of action against the higher occupier for permitting the natural, unconcentrated flow of water, whether on or under the surface, to pass from the higher to the lower land, but that at the same time the lower occupier is under no obligation to receive it. He may put up barriers, or otherwise pen it back, even though this may cause damage to a higher occupier. However, the lower occupier's right to pen back the water is not absolute, as I shall demonstrate below…
[I]n my opinion, although the plaintiffs had no right to require the defendants to accept the percolating water from their land, the defendants' right to reject it was not absolute, but was subject to qualification that such rejection must be reasonable and in particular in the reasonable user of their land. It follows that if a lower occupier erects barriers maliciously and not for the purpose of the reasonable user of his land, he is or may be guilty of the tort of nuisance…
Again, I gratefully adopt the words of Windeyer J. in Gartner v. Kidman, 108 C.L.R. 12, 49:
"Although he has no action against the higher proprietor because of the natural unconcentrated flow of water from his land, he is not bound to receive it. He may put up barriers and pen it back, notwithstanding that doing so damages the upper proprietor's land, at all events if he uses reasonable care and skill and does no more than is reasonably necessary to protect his enjoyment of his own land. But he must not act for the purpose of injuring his neighbour. It is not possible to define what is reasonable or unreasonable in the abstract. Each case depends upon its own circumstances."
I emphasise the last words: "Each case depends upon its own circumstances." Neighbourhood, duration, time of day may all be relevant."