Akhtar & Ors v Brewster & Anor

When construing a conveyance, the court applies ordinary contractual principles and must reach a decisive conclusion as to the land conveyed. A plan stated to be for identification purposes only may nevertheless be used to identify boundaries where the verbal description is insufficient, provided it does not contradict the conveyance. Extrinsic evidence, including relevant topographical features and conduct of the original parties, may assist where the conveyance is unclear. In a boundary dispute, a longstanding gate or other physical feature may be strong evidence of the parties’ intended boundary. Adverse possession requires factual possession and an intention to possess. Regularly granting mooring tenancies, together with associated use of river frontage and access land, may establish both elements, even where there are intervals between tenancies.

The claim concerned the western boundary of land on Ash Island owned by the defendants and adjoining land owned by the claimants. The parties’ titles derived from three conveyances dated 25 July 1947, whose plans showed dimensions and coloured parcels. The claimants contended that the defendants’ northern frontage was 90 feet and that the boundary lay at a sycamore tree. The defendants relied on a longstanding green gate and associated fencing, and alternatively claimed title by adverse possession.

The court had to determine the boundaries created by the 1947 conveyances and, if any disputed land fell outside those boundaries, whether the defendants had acquired it by adverse possession.

1. Construction of the conveyances. The 1947 conveyances were contractual documents and were to be construed using ordinary principles. Because the conveyances and plans were not clear and unequivocal, the court could consider relevant extrinsic evidence, including physical features existing at the relevant time and conduct of the original parties. The 90-foot measurement on the plan was an important starting point, but it was not conclusive.
2. A plan described as being for identification purposes only could still assist in identifying the land and its boundaries where the verbal description did not resolve the issue. The plan did not have to control the conveyance, but it could elucidate an uncertain boundary. The court was entitled to treat the 1972 OS plan and the proposed scaling exercise with caution because of their scale, omissions and inconsistencies.
3. The evidence established that the green gate replaced an older gate in substantially the same position, probably dating from at least the 1960s. The natural inference was that the gate marked the boundary. The claimants’ evidence about historic conversations was weak, largely hearsay and inconsistent with the physical evidence and an earlier plan. The boundary was therefore fixed by reference to the gate and Mr Francis’s extrapolation of it to the river.
4. Adverse possession. The requirements identified in J A Pye (Oxford) Limited v Graham [2003] 1 AC 419 were factual possession and an intention to possess. Possession need not involve continuous daily occupation. Its continuity depends on the nature of the land and its ordinary use. Granting mooring tenancies over the disputed frontage, tenants’ use of the steps and bank, maintenance of the mooring facilities, storage of dinghies and other associated acts showed that the defendants dealt with the land as occupying owners and intended to exclude others so far as reasonably practicable.
5. The defendants had established at least 12 years’ adverse possession by 1998, and on the evidence probably by 1988. Any alleged consent in 1998 or 2008 was ineffective because there was no meeting of minds as to the location of the boundary, and in any event the limitation period had already accrued. The defendants therefore owned the disputed land under the 1947 conveyances and, alternatively, had acquired it by adverse possession. A declaration broadly in the form sought by the defendants was ordered, with the precise form of order to be agreed or determined after further submissions.

First instance decision. No earlier decision or appeal is stated in the judgment.