Piper & Anor v Wakeford & Anor

Where a conveyance and its plan leave a boundary unclear or ambiguous, the court may consider extrinsic evidence, including subsequent conduct, if it has probative value in determining the original parties’ intention. Later physical features assist only where their connection with that intention is properly established.

Acts by the original purchaser and vendor which respectively mark the conveyed land and retained land may be probative, particularly where neither party challenged the other’s act. An inaccurate plan which is not to a consistent scale, and whose apparent features are unsupported by the conveyance, provides fragile evidence of an intended measurement.

The respondents owned Pinewood and the appellants owned the adjoining property, Nirvana. The dispute concerned the line of Pinewood’s southern boundary and whether a strip containing pine trees lay within Pinewood or was an unowned strip between the properties.

District Judge Tennant, following a site view and a two-day trial in the Southampton County Court, declared the boundary substantially along a line proposed by the parties’ surveyor. He rejected the appellants’ adverse-possession claim. The appellants accepted the finding about their own boundary but challenged the construction of the 1908 conveyance of Pinewood, particularly the treatment of a 120-foot measurement and later physical features.

1. Permission to appeal was granted, but the appeal was dismissed unanimously. Lord Justice Lloyd gave the reasoned judgment, with whom Lord Justices Rimer and Ward agreed. The district judge’s conclusion was open to him on admissible evidence and his findings of fact.

2. The 1908 conveyance and its hand-drawn plan did not establish that the lane was intended to be 30 feet wide. The plan was neither drawn nor expressed to be to a consistent scale. Its visual similarity between the lane and proposed estate roads was weak evidence, especially as no right of way connected those roads with the lane. The stated acreage was also unreliable as a guide to the boundary.

3. The court applied the approach in Ali v Lane [2006] EWCA Civ 1532. Subsequent conduct and physical features may be considered when a conveyance is unclear, but only for their probative value concerning the original parties’ intention. The district judge was entitled to infer that the original vendor’s pre-1926 fence marked both the actual width of the lane and part of the boundary between retained and conveyed land. That inference supported a lane of about 17 feet, rather than 30 feet.

4. The judge was also entitled to treat the pine trees, planted by the owner of Pinewood while the original vendor owned the adjoining land, as evidence that both original parties intended the boundary to lie south of the trees. Neither original party had challenged the relevant act of the other. The judge’s erroneous statements that there was no evidence supporting a 30-foot lane and that the fence replaced an earlier feature did not undermine the conclusion reached on the proper evidence.

5. The proposed boundary declaration therefore stood. The appellants had accepted the rejection of their adverse-possession claim.

• Court of Appeal (Civil Division): In [2008] EWCA Civ 1378, permission to appeal was granted and the appeal was dismissed.
• Southampton County Court: District Judge Tennant, on 18 February 2008, declared Pinewood’s southern boundary substantially along the surveyor’s proposed line and rejected the appellants’ adverse-possession claim.