Harrison & Anor v Brading

In construing a conveyance and an attached plan, the court must consider the conveyance, the objective circumstances known at the date of the transaction, the plan and relevant physical features together. A plan defining the property must be given full weight, but no single feature is necessarily conclusive. “T” marks do not create a legal presumption about ownership of a boundary feature. Subsequent conduct may assist where the conveyance is unclear or ambiguous, although the relevant intention is that of the original parties. Adverse possession requires both factual possession and an intention to possess, assessed according to the nature and use of the land. A boundary agreement may arise without formal offer and acceptance, but the parties’ conduct must establish agreement objectively. A proposal contemplating a later written agreement, coupled with conduct describing works as temporary, will not ordinarily establish a concluded boundary agreement.

The claim concerned the boundary between Cathole House, owned by Professor and Dr Harrison, and Cathole Manor Farm, owned by Mr Brading. The properties had formerly formed part of Cathole Farm. The dispute focused on two areas: land east of a retaining wall and land between the parties’ gardens.

The parties relied on the construction of a 1989 conveyance and plan, adverse possession and, in relation to the eastern area, an alleged boundary agreement arising from fencing works and communications in 2011. The court had to determine the true boundary, whether either party had acquired land by adverse possession, and whether the parties had subsequently settled the boundary.

1. Construction of the conveyance. The court construed the 1989 conveyance by considering its parcels clause, the attached plan, the objective physical circumstances at the date of the conveyance and the surrounding features. The plan defined the property and therefore required full weight, including its fixed points, relationships and directions. “T” marks were relevant but did not raise a legal presumption as to ownership of the adjoining fence or wall.
2. In Area B, the plan, the “T” mark, the conveyance’s reference to maintaining the fence and the physical character of the land showed that the boundary followed the garden fence and continued eastwards. No part of Area B was conveyed. In Area A, the measurements and geometry on the plan were materially inconsistent with the retaining wall. The boundary therefore included a strip of field and orchard east of that wall, on the line plotted from the plan’s dimensions.
3. Adverse possession. Possession required factual possession and an intention to possess. The evidence did not establish that Mr Brading or his predecessor had possessed Area B. In Area A, grazing by the claimant’s predecessor’s tenants did not establish continuous possession for the requisite period because Mr Brading also used the land and the grazing was seasonal and limited. The boundaries had therefore not changed through adverse possession.
4. Boundary agreement. A boundary agreement may be established from the parties’ conduct and need not depend on formal offer and acceptance. However, the Harrisons’ proposal contemplated a comprehensive agreement to be recorded in writing and signed by all four parties. The subsequent fencing was treated as temporary while the disputes remained unresolved. Objectively, no concluded agreement had been reached.
5. The court declared the boundaries to be those identified in its conclusions: the Area A boundary followed the plotted line east of the retaining wall; the Area B boundary followed the garden fence; and neither boundary had changed since 1989. Counsel were to be heard on the consequential order.

First-instance proceedings. The judgment records no earlier appellate decision.