Herbert v Pegrum & Anor

In ordinary conveyancing, land bounded by a stream is presumed to include the stream divided laterally, unless the conveyance clearly indicates otherwise. An estoppel requires clear words. Describing a ditch or watercourse as being on the south side of property, and granting rights to construct and use a road over it, may be consistent with divided ownership and does not necessarily show that the whole stream was conveyed. Appellate courts rarely interfere with findings of fact unless the judge was plainly wrong, had no evidential basis for the conclusion, or plainly misunderstood the evidence.

The claimant and the defendants owned adjoining properties separated historically by a stream. Following a trial in the Barnstaple County Court, His Honour Judge McKintosh gave judgment on 14 October 2003, fixing the boundary by reference to the stream and a leylandii hedge, and holding that the 1931 conveyance created an estoppel in the claimant’s favour.

The defendants sought permission to appeal out of time. They challenged both the factual findings and the construction of the 1931 conveyance. The central issues were whether the factual findings were open to challenge and whether the conveyance clearly established that the whole stream formed part of the claimant’s land.

Outcome. The court unanimously granted permission to appeal on the estoppel issue and allowed the appeal on that issue. Permission to appeal was refused on the factual issues.

1. Factual findings. An appellate court rarely interferes with a trial judge’s findings of fact. Intervention may be justified where the judge was plainly wrong, had no proper basis for the conclusion, or plainly misunderstood the evidence. The defendants’ complaints about the leylandii, plans, photographs and alleged perjury did not meet that threshold.
2. Construction of the conveyance. The plan to the 1931 conveyance showed the claimant’s predecessor’s land bounded by a stream. In ordinary conveyancing, that would ordinarily mean that the stream was divided laterally, with the northern half conveyed and the southern half retained, unless the conveyance clearly indicated that the whole stream was included.
3. Estoppel. The alleged estoppel could arise only from clear words. The reference to the ditch or watercourse on the south side of the property was ambiguous. A grant of rights to construct a road over the watercourse, and to pass and repass over it, was consistent with the trustees owning half the stream. Those words described the road and the rights granted; they did not clearly indicate that the whole stream belonged to the claimant’s predecessor. The trial judge’s contrary conclusion was therefore unjustified as a matter of law.
4. Consequential order. The boundary was to be identified using the trial judge’s wording and plan, adjusted so that the line was three feet north of the line previously identified. If the leylandii line could not be located, the county court judge was to resolve the issue. The claimant was awarded her costs below, with no order for costs on the appeal.

• Court of Appeal (Civil Division): In [2005] EWCA Civ 120, permission to appeal was granted on the estoppel issue and refused on the factual issues. The appeal was allowed on the estoppel issue.
• Barnstaple County Court: His Honour Judge McKintosh gave judgment on 14 October 2003 concerning the boundary between the adjoining properties and held that an estoppel had arisen from the 1931 conveyance.