Clements & Ors v Goodacre

Registered title plans normally show general boundaries; they do not, by themselves, establish the precise legal line. Where a boundary agreement indicates that adjoining holdings meet, a party claiming an intervening strip must produce objective evidence that the strip was deliberately created and reserved. A physical path is compatible with use of the owner’s land and does not prove separate title. An easement of necessity requires more than inconvenience or the absence of the most convenient or complete access. Some alternative access defeats necessity where the retained land can still be used. A wholly new point raised late on appeal may be refused where it lacks a clear prospect of success.

The dispute concerned a wedge between Greenwood Farm, owned by the Clements, and Glendale Manor, owned by the Bushes. The adjacent lozenge was owned by Goodacre, who claimed the wedge as access. A post-and-rail fence agreed in 1973 had been treated as the boundary of Glendale Manor. The County Court found that the land on the other side, including the wedge, passed with Greenwood Farm and awarded both claimant groups damages for trespass.

Goodacre appealed, relying on bank possession and registration documents said to follow the Ordnance Survey boundary. He also advanced an issue-estoppel argument and sought to raise a new easement-of-necessity point. The central issues were whether registration fixed the precise boundary, what evidence was needed to establish a separately retained access strip, and whether the new point should be entertained.

The appeal was dismissed unanimously. The application to amend the case to raise an easement-of-necessity argument was refused.

1. Under Rule 278 of the Land Registration Rules 1925, registered boundaries were ordinarily general boundaries. They did not fix the precise legal line unless the boundary had been specifically determined through appropriate proceedings. The Ordnance Survey-based boundary shown in the registration documents therefore did not itself establish that the wedge belonged to Goodacre.
2. The County Court had properly treated the 1973 boundary agreement as establishing the boundary of Glendale Manor. The natural inference was that Glendale Manor and Greenwood Farm were intended to adjoin at the agreed fence line. To displace that inference, Goodacre had to produce objective evidence that, at the time of the agreement or subsequently, a separate strip had been deliberately created for access to the lozenge and reserved from the land charged or transferred.
3. No such evidence existed. The contemporary documents and Goodacre’s evidence did not indicate any intention to separate the wedge when Greenwood Farm was charged to the bank. The Capel statement showed only that a physical path existed. That was consistent with Goodacre using his own land and did not establish separate title.
4. The court’s alternative discussion of easement of necessity was that such an easement requires the retained land to be unusable without the claimed access. A footpath or other access is sufficient; inconvenience, lack of vehicular access, or inability to enjoy the land to its fullest extent is insufficient. The principle was consistent with Union Lighterage Co v London Graving Dock Co [1902] 2 Ch 557 at 573. Manjang v Drammeh concerned a different issue, although its treatment of alternative river access gave no support to Goodacre’s argument.
5. The new point was raised after a full hearing and represented a further late change of direction. It was misconceived and had no clear-cut prospect of success, so the amendment was refused. The appellant was ordered to pay the first respondents’ costs of £13,000 and the second respondents’ costs of £7,500, both inclusive of VAT.

• Court of Appeal (Civil Division) dismissed the appeal and refused the application to amend the case: [2004] EWCA Civ 1406.
• Brighton County Court, HHJ Kennedy QC, gave judgment on 19 November 2003 for the claimants, finding that the wedge formed part of Greenwood Farm and awarding damages for trespass.