Stephenson & Anor v Johnson & Anor

In a boundary dispute, an agreement fixing a boundary may be inferred from the parties’ conduct. It is unnecessary to identify a conventional offer and acceptance if, on the balance of probabilities, the conduct establishes agreement. Courts should assess the evidence as a whole, including the erection and maintenance of fences, dealings concerning boundary structures, occupation, and the absence of objection. Informal boundary agreements are legally significant and should not be rejected merely because they differ from a paper title. Where an agreement sufficiently resolves the boundary issue, it is unnecessary to determine an alternative estoppel case based on the same facts.

The claimants appealed from the dismissal of their boundary claim by His Honour Judge Howarth in the Darlington County Court on 27 July 1999. The dispute concerned the eastern boundary between 1 Hartforth Village and Hartforth Hall, including whether an existing fence and a later dog-leg fence represented the agreed boundary.

The claimants relied on the 1973 deed of gift and subsequent conveyances, arguing that the documentary title governed and that no boundary agreement had been made. The defendants relied on the parties’ conduct, the fencing arrangements, and the absence of objection over several years. The central issue was whether the judge was entitled to infer a boundary agreement from the primary facts.

1. Appeal dismissed. The court upheld the finding that the boundary was fixed by agreement along the line of the existing fence and the later dog-leg fence. The appeal was dismissed with costs, subject to the orders concerning costs and the other applications recorded in the order.

2. Per Bennett J, an agreement fixing a boundary may be inferred from the parties’ course of conduct. It is not strictly necessary to identify an offer and acceptance. The question is whether, on the balance of probabilities, the conduct establishes agreement.

3. The relevant circumstances included the construction and position of the defendants’ fence, the defendants’ fencing obligations under the 1986 conveyance, Mr Vane’s involvement in negotiating the replacement wicket gate, the joining of the two fences, the practical advantage of the existing fence, and the absence of any objection for nearly six years. Taken together, those facts justified the inference of agreement.

4. The court rejected the submission that the existence of a paper title, or the availability of adverse possession principles, meant that the court should not recognise a boundary agreement. Following Neilson v Poole (1969) 20 P & CR 909, the court treated boundary agreements as valuable means of quieting disputes and accepted that they may be informal.

5. Clarke LJ agreed that the whole fence represented the boundary. Pill LJ likewise held that the judge was entitled to infer the agreement from the evidence viewed against the factual background. Once the agreement was established, it was neither necessary nor appropriate to determine the alternative estoppel argument based on the same facts.

• Court of Appeal (Civil Division): [2000] EWCA Civ B4. Appeal from the Darlington County Court dismissed.
• Darlington County Court: His Honour Judge Howarth dismissed the claim and declared the boundary to follow the defendants’ case.