McCullough v Armstrong

In construing an historic conveyance, the description of land must be read with the conveyancing history, plans and surrounding circumstances. A plan expressed to be for identification only is not normally conclusive, but it may be considered where the parcels clause is ambiguous. Separate descriptions of adjoining land and a carriage drive, together with their separate treatment on a later sale plan, may establish that the drive was not conveyed. The court may uphold the construction supported by the transaction documents even where circumstantial evidence, such as access, points the other way.

The appeal was brought by McCullough v Armstrong from a decision of Professor Robert M Abbey, sitting as a Deputy Adjudicator to HM Land Registry. The Deputy Adjudicator refused an application to rectify the registered title to The Old Coach House by removing a registered right of way. He concluded that Mr McCullough had not acquired ownership of the track over which the right of way ran. The central issue was whether the 1969 conveyance, read with the 1912 conveyance, the 1951 conveyance, the plans and the surrounding circumstances, conveyed the track to Mr McCullough.

1. Appeal dismissed. The Deputy Adjudicator was right to conclude that the disputed track was not conveyed to Mr McCullough.

2. The 1912 conveyance separately described The Croft, used as a garden, and a nine-foot strip forming a carriage drive to Queen Street. The plan separately identified The Croft and the right of way. The proper inference was that The Croft did not include the track.

3. The 1951 and 1969 conveyances used substantially the same reference to The Croft and did not expressly include the carriage drive. There was no evidence that The Croft had changed so as to include the track. The track was physically separate and ran between several properties.

4. The plan attached to the 1969 conveyance was expressed to be for identification only and not by way of limitation. Nevertheless, where the parcels clause is ambiguous, the plan may be considered as an aid to construction. The plan did not show the track within lot 6. The evidence of Mr Whitaker supported the inference that the lots had been carefully identified and that the track was not intended to form part of lot 6.

5. The conveyance was therefore construed in the light of the conveyancing history and surrounding circumstances. It was unnecessary to decide whether Mr Armstrong and his predecessors had acquired a right of way by prescription.

6. The order requiring Mr McCullough to pay the costs of the hearing before the Deputy Adjudicator was upheld. The single hearing had been directed on sensible case-management grounds, and his failure on the ownership issue justified the costs order.

• High Court (Chancery Division): On appeal, Mr Justice David Richards dismissed the appeal.
• HM Land Registry: Professor Robert M Abbey, sitting as a Deputy Adjudicator, refused the application for rectification and made an order for costs against Mr McCullough.