Burns v Morton

Adjoining owners may impliedly agree that a newly erected dividing wall defines their boundary, even though it stands slightly inside the previous boundary. The agreement may be inferred from the conveyances, the purpose and position of the wall, and the owners’ subsequent acceptance of it.

Where the agreed boundary differs from the former boundary, the agreement may operate to transfer the intervening strip of land. A wall designated by the conveyances as a dividing and party wall may therefore become both the effective boundary and a party wall.

The owners of adjoining properties disputed their boundary after the appellant pruned a hedge belonging to the respondents. The original boundary had been marked by a wooden party fence. The appellant replaced it with a wall built six to nine inches inside his land, and the neighbouring owners subsequently treated that wall as the boundary.

His Honour Judge Wood in Sunderland County Court held that the wall had become the boundary and awarded damages for trespass. The appellant contended that building a wall within his own property could not transfer the intervening strip to his neighbours. The central issue was whether an implied boundary agreement had made the wall the effective boundary and party wall.

1. Appeal dismissed unanimously. Swinton Thomas LJ held that the adjoining owners had impliedly agreed that the wall erected in 1979 should mark the boundary. Tuckey LJ agreed that the new wall became the division wall which the conveyances declared to be a party wall.

2. The existence of an implied boundary agreement was supported by the language of both conveyances, which described the relevant structure as a division or dividing wall and as a party wall. That language indicated that the structure was intended to demarcate the properties. The conveyance plans lacked sufficient detail to identify the boundary precisely, while the wall stood close to the former fence and provided a visible boundary upon which a purchaser could rely.

3. The surrounding conduct also supported the agreement. The new wall had remained in position for about 20 years and had been accepted by the adjoining owners as the true boundary. The county court judge was therefore entitled to infer mutual acceptance despite the absence of direct evidence from the owners who occupied the neighbouring property when the wall was built.

4. The guidance in Neilson v Poole [1969] 20 P&CR 909 applied. A boundary agreement may confirm an existing boundary, but it may also alter it. Where the agreed line differs from the former legal boundary, the agreement may constitute an agreement by which land belonging to one owner is thereafter to belong to the other.

5. The implied agreement, read with the two conveyances, operated to transfer the strip between the former fence line and the new wall from the appellant’s property to the respondents’ property. The wall consequently became both the dividing wall and the party wall. The appeal was dismissed with costs, and leave to appeal to the House of Lords was refused.

1. Court of Appeal: The appellant’s appeal was dismissed unanimously. The court upheld the conclusion that the new wall had become the agreed boundary and a party wall.
2. Sunderland County Court: His Honour Judge Wood held that the wall erected inside the former boundary had become the boundary between the properties. He found that the appellant had trespassed by pruning beyond that boundary and awarded damages.