Huntley & Anor v Armes

A conveyance and incorporated plan may define a boundary by measurable dimensions and identifiable reference points, even where a physical fence was placed on another line. The fence is not conclusive unless the conveyance indicates that it is intended to define the boundary. However, long-standing exclusive possession of the disputed strip may extinguish the paper owner's title by adverse possession. Where the requisite period is established, the physical line may become the present boundary. An appellate court may uphold the result on that alternative basis where the issue was pleaded and argued and no prejudice arises.

The claimants owned No 38 Simmil Road and the respondent owned the adjoining No 39. The dispute concerned whether the boundary was the straight red line indicated by the 1935 conveyance and plan for No 39, or the irregular green line followed by the original post-and-wire fence and later boundary features.

Following a five-day trial, His Honour Judge Winstanley declared the green line to be the boundary in an order dated 4 March 2009. He treated the original physical fence as defining the boundary and did not determine the respondent's alternative case that the claimants' predecessors had lost title to the disputed triangle by adverse possession. The claimants appealed on construction of the conveyance and on the factual findings. The respondent relied on adverse possession as an alternative basis for upholding the result.

1. Appeal dismissed. The Court of Appeal held that the 1935 conveyance, read with its plan, conveyed land with front and rear boundaries each measuring 27 feet 6 inches. The eastern boundary could be identified by measurement from the agreed party-wall baseline. The rear measurement could not be ignored as an error. On its ordinary construction, the conveyance identified the red line as the paper-title boundary. The conveyance did not indicate that the physical fence was to define the boundary instead. The reference to a T-mark on the plan was treated consistently with the approach in Seeckts v Derwent [2004] EWCA Civ 393 at paragraph [28].
2. The trial judge was nevertheless entitled to find that the original fence followed the green line. The evidence concerning the garage, the surviving fence, the orphan post and the probabilities supported that conclusion. Although the judge should have dealt more fully with the evidence about the post, his factual findings were not properly open to challenge on appeal, particularly given his advantage in seeing and hearing the witnesses and inspecting the site.
3. The respondent was not precluded from relying on adverse possession merely because he had not served a respondent's notice. The issue had been pleaded and argued below, and the claimants had suffered no prejudice. The owners of No 39 had been in exclusive possession of the disputed triangle from 1935. By about 1950 at the latest, their possession had extinguished the claimants' predecessors' paper title. The green line therefore represented the present boundary, although it was not the boundary originally identified by the conveyance.
4. The later claim to a further long, flat triangle failed for want of proof of the requisite 12-year period before 13 October 2003. That failure did not affect the earlier acquisition of title to the disputed triangle. The first-instance decision was affirmed in result, though for reasons which differed from those given by the trial judge.

• Court of Appeal (Civil Division): dismissed the claimants' appeal and upheld the boundary declaration, relying additionally on adverse possession.
• Kingston upon Thames County Court: following a five-day trial, His Honour Judge Winstanley made an order on 4 March 2009 declaring the green line to be the boundary.