Ali v Lane & Anor

A conveyance is the starting point for determining a land boundary. Extrinsic evidence may assist only where the conveyance or plan is unclear or ambiguous, and only to the extent that it has genuine probative value as to the original boundary.

Later physical features and a subsequent owner’s unilateral conduct do not establish an earlier boundary unless they can reliably be connected with features or intentions existing when the conveyance was made. Related contemporaneous conveyances may be used to construe an uncertain boundary. The admission of fresh evidence on appeal remains guided by the Ladd v Marshall criteria, applied flexibly.

The claimant held the paper title to disputed land adjoining the defendants’ property, Greenacres. The defendants’ adverse-possession claim had failed. The remaining dispute concerned the precise common boundary.

HH Judge McCahill QC preferred the claimant’s boundary, derived from measurements in a group of 1947 conveyances and surviving land features. The defendants appealed, contending for a line based principally on later physical features and their predecessor’s conduct. They also sought to adduce fresh evidence concerning features said to support that line.

The central issues were the permissible use and weight of extrinsic evidence when construing an historic conveyance, and whether the proposed fresh evidence justified disturbing the judge’s conclusion.

1. Appeal dismissed. Carnwath LJ, with whom Maurice Kay and Waller LJJ agreed, upheld the judge’s conclusion that the claimant’s boundary was the correct line.

2. The starting point was the 1947 conveyance. In ordinary contractual construction, extrinsic evidence is generally inadmissible. Conveyances of land form a recognised exception where their descriptions or plans leave a boundary uncertain. In that setting, related conveyances and physical evidence may be considered to achieve a decisive construction. The court applied the approach in Neilson v Poole [1969] 20 P&CR 909.

3. However, extrinsic material must be probative of the boundary at the relevant date. Physical features arising in the 1970s, and Mr Attridge’s later conduct or understanding, could not establish the 1947 boundary without evidence linking them to features then existing or to the original parties’ intentions. His unilateral actions could not bind the owner on the other side of the boundary.

4. The court regarded Watcham v Attorney General of East Africa Protectorate [1919] AC 533 as retaining limited value in conveyancing cases involving genuine uncertainty. Its broader proposition concerning modern instruments generally could not stand with L Schuler AG v Wickman Machine Tools Sales Limited [1974] AC 235.

5. The judge was entitled to prefer the expert analysis founded on the 1947 transactions. The later hedge, track, posts, drainage features, fencing and conifers either lacked a reliable connection with 1947 or did not displace that analysis.

6. The applications to admit fresh evidence were dismissed. The Ladd v Marshall criteria remained relevant, although applied flexibly. The new material was either irrelevant to the 1947 boundary, obtainable with reasonable diligence before trial, or incapable of having an important influence on the result.

• Court of Appeal (Civil Division): Dismissed the defendants’ appeal and upheld the boundary determination of HH Judge McCahill QC: [2006] EWCA Civ 1532.

• High Court, Chancery Division, Birmingham District Registry: Rejected the defendants’ adverse-possession claim and determined the disputed boundary in the claimant’s favour.