Avon Estates Ltd v Evans & Anor

Conveyances referring to an Ordnance Survey plan must be construed objectively as a whole. Where the parcels clause, plan and schedule are consistent, the plan may identify the precise boundary, including the physical feature represented on it. Unexplained T marks have no fixed legal meaning and cannot, without admissible supporting material, establish ownership of a boundary feature.

There is no general presumption that ownership of a hedge carries ownership of a strip of land beyond its growers. Adverse possession requires both factual possession and an intention to possess. Grazing and occasional use of small, ill-defined margins within a hedge may be equivocal and insufficient. A lower occupier has no general duty to receive naturally draining, unconcentrated water, subject to the qualification that use of land must be reasonable.

The claimant owned Avon Park, a mobile-home park, and the defendants owned adjoining Oxtalls Farm. The parties disputed the boundary established by 1955 and 1963 conveyances, particularly where an ancient hedge, an old fence and unexplained T marks appeared on the conveyance plans.

The defendants also claimed title by adverse possession to marginal areas between the paper boundary and the old fence. They counterclaimed in nuisance, alleging that the claimant had raised and widened an access road and thereby obstructed natural drainage from their land. The court determined the true boundary, the adverse-possession claim and the drainage counterclaim.

1. Boundary under the 1955 conveyance. The conveyance, plan and schedule were to be construed together. The plan was not inconsistent with the parcels clause and identified the fields and their boundaries by reference to the Ordnance Survey features. Since the line shown represented the centre of the hedge, the prima facie boundary was the line between the centres of the hedge growers. This approach was consistent with Fisher v Winch [1939] 1 KB 666 and Harsten Developments Ltd v Bleaken [2012] EWHC 2704 (Ch).
2. T marks. T marks have no single or default meaning where the conveyance contains no explanation and other admissible material does not identify their purpose. They may relate to ownership, maintenance or another right or obligation. The marks therefore did not alter the boundary. Seekts v Derwent [2004] EWCA Civ 393 was distinguished because there was supporting expert and contractual evidence in that case.
3. There was no general rule that ownership of a hedge entails ownership of a protective strip beyond the growers. Collis v Amphlett [1920] AC 271 supported that conclusion. The alternative case based on such a strip would therefore have failed.
4. Adverse possession. Following J Pye (Oxford) Ltd v Graham [2003] 1 AC 419 and Powell v Macfarlane (1977) 38 P&CR 452, the defendants had to prove factual possession and an intention, so far as reasonably practicable, to exclude the paper owner. Grazing up to a hedge, maintenance of its own side and occasional use did not establish sufficient control or intention over the small disputed margins. The claim for adverse possession failed.
5. Drainage. The defendants failed to prove that the road had been raised so as to cause the alleged retention of water. In any event, applying Home Brewery Co Ltd v William Davis & Co (Leicester) Ltd [1987] 1 QB 339, the claimant owed no general duty to receive naturally draining, unconcentrated water. Constructing or modestly raising a reasonable access road without special drainage works would not be actionable absent unreasonable use. The counterclaim was dismissed.

First-instance judgment. The judgment does not state any prior appellate decision.