Willsher v Scott & Ors

In boundary disputes, an Ordnance Survey map does not itself fix the legal boundary. Where it is incorporated into a conveyance, the court must ascertain the boundary that the deed plan truly shows, while reading the plan with the conveyance’s operative words and accounting for its scale and limitations. A physical feature shown on the map does not automatically place the boundary at its centre. A covenant requiring a purchaser to erect a fence between marked points may indicate that the fence was intended to mark the boundary. An appellate court may uphold a trial result despite inadequate reasoning where the findings and evidence permit a safe inference as to what the judge accepted.

Mr Willsher appealed from a reserved judgment of His Honour Judge Wassall in the Truro County Court concerning boundaries between land acquired by the parties from the British Railways Board. Permission was granted on the northern boundary issue and, later, on the eastern boundary issue. The County Court had found the northern boundary at the bottom of a bank and the eastern boundary along the line identified by a jointly instructed expert. Permission was refused on the public highway issue. The central questions were how the conveyances and their Ordnance Survey plans identified the boundaries, and whether the trial judge’s reasoning justified the conclusions reached.

Unanimous decision. Laws LJ gave the judgment of the court, with Carnwath LJ and Moore-Bick LJ agreeing. The appeal was dismissed.

1. Northern boundary. The trial judgment contained shortcomings, including an apparent contradiction and no express finding about the fence said to have been erected in 1968. The Ordnance Survey maps, deed plans and Land Registry plans were uncertain guides to the precise boundary and could not accurately transpose it onto the ground. Clause 3(2) of the 1968 conveyance required the Scotts to erect a fence between marked points. That obligation was intended to mark the boundary. Mr Scott’s evidence was that he erected the fence at the bottom of the bank, the British Railways Board knew its position and made no objection. The judge had generally accepted Mr Scott’s evidence, and the evidence permitted the inference that he accepted this account. The result could therefore be upheld without a retrial or reliance on adverse possession.
2. Eastern boundary. Fisher v Winch [1939] 1 KB 666 was explained as establishing that the use of an Ordnance Survey copy as a deed plan does not prevent the plan from showing a boundary. It did not require the boundary to lie along the centre line of every physical feature shown. The 1986 conveyance described the land as adjoining Station Road, and the plan had to be read conformably with those operative words. The judge was entitled to accept the expert evidence identifying the boundary just to the east of the hedge or wall. The evidence did not establish that the whole feature shown on the plan was a ditch, and there was no obligation to adopt the centre line of the hedge.
3. The County Court’s conclusions on both boundary issues were upheld, notwithstanding defects in the reasoning.

Court of Appeal (Civil Division): [2007] EWCA Civ 195; dismissed the appeal on the northern and eastern boundary issues. Permission had been refused on the public highway issue.

Truro County Court: His Honour Judge Wassall, in a reserved judgment dated 10 December 2004, determined the northern boundary in favour of the Scotts and fixed the eastern boundary along the line identified by the jointly instructed expert.