Dominic Miles & Anor v Richard Reid & Anor

In a boundary dispute, the construction of a conveyance and plan may require extrinsic evidence where the plan is inaccurate, drawn to an unreliable scale, or contains inconsistencies. The court may consider physical features and other contemporaneous evidence to ascertain the parties’ intended boundary.

An interference with a right of way is actionable only if it substantially interferes with the use reasonably required by the dominant owner. The question is whether the right can still be exercised substantially and practically as conveniently as before. A minor obstruction or additional manoeuvre will not necessarily be substantial.

A party cannot ordinarily introduce a highly fact-sensitive estoppel defence for the first time in closing submissions where the case was not pleaded and the opposing party lacked fair notice.

The appellants owned Peartree Cottage and the respondents owned the adjoining Forge Cottage. The properties had formerly been in common ownership and were divided by conveyances dated 1 June 1944. The dispute concerned the boundary, a right of way benefiting Peartree Cottage, a replacement fence, a brick outbuilding, a patio and an oil pipe.

The trial judge determined the boundary by reference to the conveyances, plans, expert evidence, physical features and other evidence. She found that the fence caused only a limited encroachment on the right of way, that there was no substantial interference, that the outbuilding belonged to the respondents, and that the patio and oil pipe constituted trespasses. The appellants sought permission to appeal on grounds concerning construction, evidence, interference, trespass and estoppel.

The central issues were whether the trial judge had erred in determining the boundary and right of way, and whether the appellants should have been permitted to raise an estoppel argument at the end of the trial.

1. Permission to appeal refused. None of the grounds disclosed a real prospect of success, and there was no compelling reason for the appeal to be heard.
2. The trial judge was entitled to use extrinsic evidence in construing the 1944 conveyance and plans. The plans contained inaccuracies, scale problems and differences between the two conveyances. Evidence concerning former structures and physical features was capable of assisting in identifying the parties’ intention at the date of the conveyance. The judge had carefully evaluated the expert, factual, documentary and photographic evidence and had not simply preferred one expert in a speculative contest.
3. The principles governing substantial interference with a right of way were correctly stated. Not every obstruction is actionable. The relevant question is whether the dominant owner’s reasonably required use of the right can still be exercised substantially and practically as conveniently as before. The burden rested on the party alleging substantial interference.
4. The 40cm encroachment caused by squaring off the fence near the respondents’ outbuilding was properly found to be minimal. The right of way remained substantially and practically convenient, including for wheelchair access. Any additional manoeuvre was insufficient to amount to substantial interference.
5. The patio was an alteration of the land, not maintenance of the right of way, and its installation on the respondents’ land constituted trespass. The proposed equitable maxim concerning acts that ought to have been done was inapposite.
6. The estoppel case was not pleaded. Its essential ingredients, including mistaken belief, reliance, detriment and unconscionability, were absent from the pleading. Allowing the appellants to raise that highly fact-sensitive defence after the respondents had closed their case would have caused obvious procedural injustice and might itself have constituted a serious irregularity.

The decision under challenge was a first-instance judgment determining the boundary, right of way and trespass issues in favour of the respondents. The High Court refused permission to appeal following a rolled-up hearing.