Langridge v Mead

In a trespass claim, the claimant bears the burden of proving trespass on the balance of probabilities. That burden does not permit a court to refuse an inference compelled by the evidence. Where a defendant installed an irrigation system, accepts that its pipes and cables are his, and physical evidence shows that parts remain on the claimant’s side of the boundary, the court must determine ownership from the whole evidence. It is an error to demand direct proof when the circumstances leave only one reasonable conclusion.

The appellant, whose land was known as Avus, claimed declarations defining the boundary with adjoining land owned by the respondent and his wife. He also claimed trespass, alleging that irrigation pipes and electrical cables extended onto his land.

The Kingston upon Thames County Court defined the boundary by reference to the claimant-facing sides of the laurel hedges and dismissed the trespass claim. The trial judge accepted that the respondent had arranged for the irrigation system to be moved, but declined to infer that pipes and cables still visible on the claimant’s land formed part of that system.

Permission to appeal was refused on the boundary issue but granted on trespass. The central question was whether the evidence established that the remaining pipes and cables belonged to the respondent.

Ward LJ delivered the judgment of the court. Jacob LJ and Patten LJ agreed. The appeal was allowed.

1. The boundary determination was not open to challenge because permission to appeal on that issue had been refused. The appeal was confined to the dismissal of the trespass claim.
2. The claimant alleging trespass had to prove it on the balance of probabilities. That principle was correct in the abstract, but the trial judge had to assess all the evidence and reach a conclusion on ownership.
3. The trial judge had accepted that the respondent installed the irrigation system in 2004 and had arranged for its pipes and cables to be moved after the complaint. The judge had also observed pipes and cables on the claimant’s land during the site inspection.
4. The respondent’s evidence showed that he assumed the pipes and cables were part of his system, had not inspected their location, and could identify no reasonable alternative ownership. There was no suggestion that the items belonged to or formed part of the claimant’s property.
5. In those circumstances, the overwhelming and irresistible probability was that the pipes and cables remaining on the wrong side of the boundary were part of the system installed by the respondent. The judge erred by declining to draw that inference because there was no positive evidence directly proving ownership. He failed to make the necessary finding when the evidence admitted of only one reasonable answer.
6. The appeal therefore succeeded on the respondent’s admissions and the trial judge’s failure to determine ownership correctly. The operative order was: appeal allowed.

1. Kingston upon Thames County Court: His Honour Judge Winstanley determined the boundary by reference to the laurel hedges and dismissed the trespass claim.
2. Court of Appeal (Civil Division): Permission to challenge the boundary determination was refused, but permission was granted on trespass. The appeal was allowed: [2011] EWCA Civ 474.