Neutral Citation Number: [2004] EWCA Civ 393
Case No: B2/2003/1225
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TUNBRIDGE WELLS COUNTY COURT
H.H. JUDGE MITCHELL
Case No TN 001460
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30th March 2004
Before :

LORD JUSTICE WALLER
AND
LORD JUSTICE CARNWATH

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Between :

	ROBERT CECIL SEECKTS	Claimant/
Respondent	
	-	and –
-			
	(1)	PAUL DERWENT
(2)	JANET DERWENT	Defendants /Appellants	

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Mr J Harper QC and Mr S. Bickford Smith (instructed by William A Merrick & Co) for the Defendants /Appellants
Mr P Crampin QC and Mr U Staunton (instructed by Robert C Seeckts, Solicitors) for the Claimant/Respondent 

Hearing dates : 5th March 2004
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Judgment
Lord Justice Carnwath : 

Introduction 
1.	This unhappy boundary dispute goes back many years. The immediate cause of the proceedings was the destruction by Mr Derwent, on 3 May 2000, of a length of laurel “hedge” which divided Clock House, owned by Mr Seeckts, from the Derwents’ property known as Linden House.  (I use the word “hedge” in inverted commas, since its precise nature is one of the disputed issues.) 
2.	The division between the two properties dates from a Conveyance dated 24 December 1968, by which Clock House was conveyed to Mr Seeckts (“the 1968 Conveyance”). Before that, Clock House and much of its surrounding land (including the stable block, which later came to be known as Linden House) had been in the common ownership of Amersham Investment Trust Ltd.  Amersham sold Linden House in 1976 to Mr and Mrs Rosevear. The Derwents purchased it in 1983.  
3.	A plan 1724 (“the conveyance plan”) was attached to the 1968 Conveyance, and appears to show the intended boundaries of the property conveyed to Mr Seeckts. The correct interpretation of the 1968 Conveyance and of the conveyance plan lie at the heart of the dispute. 
The disputed boundary
4.	It is difficult to describe the physical layout without reference to a plan. Further, the letters used to denote the main points have not been used consistently. (The disputed boundary was denoted by the letters V, O and R1 on the conveyance plan; by letters A to D on the plan attached to the particulars of claim (the claim plan); and by other letters in parts of the evidence.) However, we have had the benefit of an agreed plan reconciling the different versions.
5.	For the present purposes, the main features are as follows:-
i)	The building of Linden House lies to the north of Clock House, some 50 feet away at the nearest point. The part of the boundary with which we are concerned lies between the two properties and runs generally from north-west to south-east.
ii)	The relevant section of boundary starts from point V (point A in the claim plan) at the north-west corner of the Clock House grounds. From that point it was shown in the conveyance plan running south-east towards Clock House in a straight line for 157 feet, following the edge of a path (shown on the Clock House side); after which it made a right-angle turn (at point Y or C) to the north-east.
iii)	As shown in the conveyance plan, it then continued to the north-east to a point R1 (16ft 6 inches south of the wall of Linden House), and, after a further right-angle turn, to the south-east to point R2 (F on the claim plan); from there it followed the line of two connected features marked “existing hedges”, the first running south from point R2 to S, and the second running north-east from point S to T. 
iv)	There was an agreed departure from the boundary shown by the line R1 to R2 in the conveyance plan. By agreement, a new boundary wall was built in that section, which veered southwards at its westerly end (between points D and E on the claim plan), D being a point on the line C-R1, a few feet south-west of point R1. It is common ground that the new wall (D-E-F) formed the boundary of the property in that section (rather than the line as shown on the conveyance plan.)
v)	There are two further points of relevance on the boundary section A-C. Point O (about 8 feet west of point C) was noted on the conveyance plan as representing the beginning of a drain-line running at right-angles to the boundary in the direction of Linden House. Point B (referred to only in the claim plan) appears to be some 20 feet to the west of point O. It appears to correspond to the beginning of a boundary feature of some form on the Linden House property, which is indicated by a broken line on the conveyance plan, but not otherwise described. The Judge did not differentiate between point O and point B (see judgment p 13 ll 5-8).
vi)	The remainder of the boundary (on the south and west sides of the grounds of Clock House) is not directly material to the dispute.
The proceedings
6.	In the amended particulars of claim, Mr Seeckts asserted that he was the owner of the relevant section of hedge (between points B-C-D on the claim plan) which had been destroyed by the defendants. He sought a declaration of his ownership of the hedge and other “boundary features”, an injunction to restrain further trespass by the defendants, and damages.  The defence raised a number of highly contentious issues, which were live before the Judge, but happily are no longer in dispute.  
7.	The Judge found in favour of Mr Seeckts and made a declaration in the following terms:
“The Court declares that the claimant is the owner of the boundary features including hedges, trees, fences and walls surrounding the claimant’s land known as Clock House, Groombridge, East Sussex and is in particular the owner of the land upon which the line of yew trees and hollies and the laurel hedge [grew] between the points marked ‘A – B - C – D’ on the plan attached to the particulars of claim.”
[I have added the word “grew” (taken from the wording of the order as claimed) in order to make grammatical sense.]
8.	In paragraph 2 of the order he directed that the precise position of the boundary between those points should be agreed by the parties and marked on the plan annexed to the order or, “in default the parties to return the case to the trial Judge…”.  He awarded damages in the sum of £1500.  
9.	Permission to appeal was granted by Mance LJ on a renewed hearing.  The first five grounds of appeal (as amended) in summary allege that the Judge failed to give sufficient weight to the dimensions on plan 1724.  Ground 6 raises a separate issue as to the Judge’s power to make the order in the terms of paragraph 2.  
10.	Although the emotional background to the dispute is highly charged, the issue for us is a narrow one of law turning on the correct construction of the 1968 conveyance and the plan attached to it.  
The 1968 conveyance.
11.	The land conveyed was described thus:
“All that piece or parcel of land situated near Park Corner near Groombridge in the County of Sussex together with the messuage or buildings standing on part thereof known as The Clock House which said land is for the purpose of identification only delineated on the plan annexed hereto and thereon edged in red.”
12.	The only specific mention of hedges in the conveyance was in the Second Schedule, referring to covenants by the purchasers.  Paragraph 5(a) imposed an obligation on the purchaser to repair and maintain “the fences along all the boundaries of the property hereby contracted to be sold”, and to erect, if so required by the vendor, a cattle-proof fence “along any part of the said boundaries where fences do not at present exist”.  Paragraph 5(b) required him “forever hereafter to maintain the hedges situated along the boundaries marked R2.S.T on the plan annexed hereto”.  
13.	I have already described the line of the relevant boundary. So far as concerns the markings on the conveyance plan, the most significant features were the following:-
i)	The whole of the boundary of the Clock House grounds was marked by a red line;
ii)	There were “T-marks” along all the boundaries, pointing to the Clock House side;  
iii)	Dimensions were marked in feet and inches, indicating distances at various points of the boundary from Clock House.  For present purposes the most significant ones are those between the two houses, on which Mr Harper relies to establish the precise boundary in that area;
iv)	On the sections of boundary between points R2, S and T (referred to in the covenants – see above) there appears the note “existing hedges”.  There is no other specific notation on the plan of the existence of hedges or other boundary features.  
14.	The Judge also attached weight to the answers to enquiries before contract.  Question 2 was “To whom do all the boundary walls, fences, hedges, and ditches belong?”  The answer was “see plan on contract”.  Question and answer 43 were as follows:
“Question: ‘Other than between points R1 and R2 the property appears to be adequately fenced or hedged.  If there is any part of the boundary where the vendor feels a fence is required would he please say so.’  
Answer: ‘You will recall we discussed this point.’”
15.	There was no material dispute as to the significance of “T-marks” in general.  Mr Stewart, the surveyor giving evidence for Mr Seeckts said:
“The Clock House boundaries are marked with T symbols positioned inwards which in accordance with normally recognised convention, and without specific evidence to the contrary, would show any feature on the boundary to be in the ownership of Clock House.”  
Mr Tonkin, for the Derwents, said:
“In accordance with the convention, an inward-facing T marking would indicate ownership of a boundary, but not what the boundary is nor where it is located.”  
The boundary vegetation
16.	The Judge did not make any very detailed findings as to the nature of the planting along the disputed boundary. In his skeleton, Mr Crampin (for Mr Seeckts) summarised the effect of the evidence as follows:
“At the date of the contract which preceded the Conveyance the physical features which divided the two properties between A and F on the [claim plan] consisted of mature yews and holly trees and a large Scots pine (towards A); a laurel hedge and/or mature laurels (between B and C); another laurel hedge (between C and D and continuing a little way beyond D towards Linden House); and open ground (between D, E and F)….”
This summary, as I understand it, was based on the evidence of Mr Seeckts himself, and of Mr Joyes, an estate agent, who acted for Amersham Investment Trust on the sale in 1968.  In particular, the evidence of Mr Joyes was that the hedges were “clearly defined” close to the house.  Mr Seeckts gave evidence that the laurels in the disputed boundary area were about 14 to 16 feet high:
“They were very distinctive.  There was no vegetation beyond them in the direction of Linden House.  They were a very distinct boundary feature.”
17.	Mr Harper (for the Derwents) commented on this summary:
“There was no evidence that the mature yews, hollies and/or the pine formed  physical dividing features in the same way as a hedge.  They in fact constituted a belt of woodland to the North of the path along line A-B on the [claim plan]”
In submissions he referred us to a 1972 aerial photograph, and described the vegetation in the disputed section as a “clump” rather than a hedge.
18.	The Judge did not comment in detail on this evidence. However, he found that there was “a well-established laurel hedge between R1 and Y and Y and O in 1972” (transcript p13).  In making this finding he made specific reference to the 1972 photograph. He also had had the “great advantage” (as he put it) of a site-view, at which various features were pointed out to him by both sides. In my view the finding that there was a “hedge” on the disputed boundary in 1972 was open to him on the evidence. I do not understand Mr Harper to suggest that it is open to us to go behind it, or that the position was materially different at the time of the conveyance in 1968.
Legal principles
19.	The correct approach to the interpretation of the conveyance is not a matter of dispute.  Both parties rely on the judgment of Megarry J in Neilson v Poole [1969] 20 P&CR 909, 915, as to the use of extrinsic evidence to explain the conveyance:
“Two factors weigh with me.  First, I feel no doubt that the modern climate of judicial and professional opinion favours the relaxation of exclusionary rules of evidence in civil cases whenever it seems safe to do so.  In civil cases, there is rarely a jury, and so rarely a body of persons whose minds have to be shielded from evidence which is of lesser cogency or liable to be unfairly prejudicial in character.  The tendency, I think, is towards admitting the evidence and assessing its weight rather than excluding it; and this is a process to which the Bench is well accustomed.  
Secondly, in the construction of the parcels clause of a conveyance and the ascertainment of a boundary the court is under strong pressure to produce a decisive result.  The prime function of a conveyance is to convey.  As to any particular parcel of land, either the conveyance conveys it, or it does not; the boundary between what is conveyed and what is not conveyed must therefore be proclaimed.  The court cannot simply say that the boundaries are uncertain, and leave the plot conveyed fuzzy at the edges, as it were.  Yet modern conveyances are all too often indefinite or contradictory in their parcels….”  
20.	It is also common ground that, although the plan is expressed to be “for identification only”, it can be used as an aid to construction.  As Buckley LJ said in Wiggington and Milner Ltd v Winster Engineering Ltd [1978] 1 WLR 1463, 1473:
“…Insofar as the plan does not conflict with the parcels, I can see no reason why, because it is described as being ‘for identification only’, it should not be looked at to assist in understanding the description of the parcels.  The process of identification is in fact the process of discovering what land was intended to pass under the conveyance, and that is the precise purpose which the plan is said to serve.  Accordingly, so long as the plan does not come into conflict with anything which is explicit in the description of the parcels, the fact that it is said to be ‘for the purposes of identification only’ does not appear to me to exclude it from consideration in solving problems which are left undecided by what is explicit in the description of any parcel.”  (p 1473H – 1474B).
21.	The relevant principles were conveniently summarised by Butler-Sloss LJ in Topliss v Green [1992] EGCS 20:-
“…One looks at the language used in the contract, the content of the plan and in the context the facts relating to the locus in quo, if it is in issue as indeed it is in this appeal, including relevant photographs and the preliminary enquiries.  The question therefore is: what would the reasonable layman think he was in fact buying?”
22.	It needs also to be remembered that precise definition of boundaries is by no means a norm in conveyancing practice in this country.  This is explained in Halsbury’s Laws Vol 4 (1) Boundaries para 904:-
“Boundaries may and generally should be fixed by the deed or deeds conveying one or both of the properties concerned.  Nevertheless, conveyances of land commonly leave the exact line of existing boundaries undetermined.  It is only in comparatively rare cases that the exact line assumes any real significance, and the steps necessary to achieve the position can be time-consuming and expensive, for boundaries cannot be fixed unilaterally unless the adjoining land is also in the ownership of the vendor.”
Normally the imprecision of such boundaries is of no practical concern.  If it does become subject to dispute, then (as Megarry J said) the Court has no alternative but to seek some objective means with the benefit of appropriate expert evidence to produce a “decisive result”.
23.	It is to be noted that the concept of a “general boundary” is specifically retained in the Land Registration Act 2002.  Section 60 provides that, unless otherwise indicated, the boundary of a registered estate is a “general boundary”, that is, it “does not determine the exact line of the boundary”.  Rules under the section will make provision for enabling the exact line to be fixed. In the preceding report (Land Registration for the 21st Century: Law Comm No 271), the Law Commission commented:
“Although there is power to fix boundaries, it has hitherto hardly ever been used for two main reasons. The first is the expense of so doing… The second is that the process of fixing a boundary is all too likely to create a boundary dispute where none had existed…” (para 9.10)
The issues
24.	The essential difference between the parties in this case comes down to the choice, in the conveyance plan, between the dimensions and the T-marks as the determinative features.  Mr Harper criticises the Judge for not having given sufficient weight to the dimensions.  
25.	I see some force in Mr Harper’s comments on the Judge’s treatment of the evidence relating to the dimensions.  Mr Tonkin had made a detailed analysis of the dimensions. That appeared to establish that they were in general accurate, and further that they did enable a reasonably precise boundary to be plotted in the area between the two houses.  The Judge rejected Mr Tonkin’s approach for reasons which he explained at page 20.  One was that the measurements depended on fixing the boundary by reference to a drain run, and to the northern edge of the path, neither of which was normal practice. The latter he regarded as 
“fraught with problems because … the edges of parts of roads can creep and thus can alter over a period of time.”  
(He also mentioned a point relating the position of an arrow on the plan, which he thought had had been misinterpreted by Mr Tonkin; but this did not form part of Mr Crampin’s submissions.)
26.	With respect to the Judge, the criticisms of his use of the drain run and the path seem to me over-stated.  Whether or not he or Mr Tonkin had come across such a practice before, it is difficult to see any fundamental objection to using such fixed features as reference points in the absence of other more suitable features.  I am prepared to proceed on the basis, as Mr Harper submits, that the dimensions on the plan could in the absence of other indications provide an adequate basis for fixing the boundaries.  
27.	The difficulty with this approach, however, is that it gives no effect to the T-marks. As I have said, there was no dispute that the T-marks would normally be expected to indicate ownership of boundary features. It had been part of the Derwents’ case that there was a fence on the Clock House side of the disputed boundary, and that it was that to which the T-marks referred.  That case was rejected by the Judge (p15).  Mr Harper, accordingly, based his submission on the proposition that there was no defined hedge or other boundary feature on the disputed boundary, to which the T-marks could sensibly be applied.  He contrasted the position on this boundary with the boundaries R2-S and S-T, which were clearly marked as “existing hedges”, and where the aerial photographs show a distinctive and substantial hedge. 
28.	In my view, it is not possible to disregard the ordinary understanding of the T-marks. The natural implication is that they were intended to represent existing boundary features, and that those features were to belong to Clock House. This implication is consistent with the Judge’s finding, for which there was evidence, that there was a “hedge” along the disputed boundary. It is also consistent with the pre-contract questions and answers, which indicate that the boundary was regarded as adequately “fenced or hedged” other than between points R1 and R2. The new wall was built to meet that concern. It is difficult to see why the wall ended at point D, unless it was thought that existing vegetation south of that point provided an adequate boundary feature. Mr Harper’s explanation for the existence of T-marks on boundaries where (in his submission) there were no existing features, was that they were intended to apply to any fence which might be erected as required by the vendor pursuant to paragraph 5 of the Schedule.  I find that an unlikely explanation, since any fence erected by the purchaser, whether or not at the request of the vendor, would normally be assumed to be his property and erected on his land, without the need for a T-mark.  
29.	This, it is true, leaves a question about the precise purpose of the dimensions.  I do not find this point altogether easy to answer. However, I do not regard them as giving a sufficiently clear indication, to displace the natural implication of the T-marks. As Mr Crampin submits, a precise fixing of the line in accordance with the dimensions would produce an odd result, in that it does not place all the laurels on the Linden House side of the boundary, but would leave some of the laurels on the boundary line or on the Clock House side.  Furthermore, as he says, if it was intended to define a precise boundary line not conforming to the hedge, it is surprising that there was no requirement to peg out the boundary and mark it so as to prevent future disputes.  The more likely explanation, in my view, is that the dimensions were intended to provide a general indication of the boundary, but not to detract from the implication of the T-marks that the boundary features belonged with Clock House.   
30.	Mr Harper also relies on the contrast with the “existing hedges” specifically noted on boundaries R2-S and S-T.  Again, I do not think that difference is sufficient to override the normal understanding of “T-marks”. The explanation for the different treatment may be that, in relation to those hedges (which appear in the photographs as important features in the landscape), there was to be a specific obligation on the purchaser to maintain them. They can indeed be seen as an illustration that the parties were content to use hedges to fix the boundaries between the two properties, without the need for a more precise definition.  
31.	In my view therefore the Judge came to the right conclusion and the appeal on the main issues must therefore fail.  
Fixing the boundary
32.	Turning to the more limited issue concerning paragraph 2 of the order, I can well understand the Judge’s desire to settle matters definitively and precisely for the future. However, he appears to have recognised the limitations of his jurisdiction in this respect.  At page 21 of the transcript, he acknowledged that this point was strictly not part of the claim but he suggested that there “must be an attempt to sort out everything as a result of this hearing.”  Following his finding that the hedge between R1 and Y belonged to Mr Seeckts, he said:
“It should be measured at the centre of the laurel stumps and a figure of perhaps 2 feet, or something that is deemed appropriate, be agreed between the surveyors representing the thickness of the boundary.  Unusual as it may be, I am quite satisfied that it was intended that the laurel hedge should lie on Mr Seeckts’ land whether it be from R1 to Y or from Y to O.  From there on it seems to me that they will have to measure between Y and O and come to some specific conclusion.  For my part it seems to me that perhaps an appropriate course of action is to measure the line between the laurels, as they are on the line Y to O in the middle, and then again add a figure, so that the precise boundary can be plotted, drawn, and the map can be lodged and attached to the original conveyance so that this unfortunate position does not re-appear.”
33.	Unfortunately this proposal has not apparently resulted in any agreement.  I agree with Mr Harper that it was not a course properly open to the Judge, other than by agreement of the parties.  The issue raised by the pleadings was not the precise boundary as such, but the ownership of the hedge destroyed by Mr Derwent.  In order to decide to whom the hedge belonged, for the reasons I have given, it was not necessary to decide where the precise boundary ran. The Judge’s solution was not one which could be forced on the parties, on the basis of the issues raised in the pleadings and the evidence directed to them.  
Conclusion
34.	For these reasons I would dismiss the appeal, save on the limited point related to paragraph 2 of the order, which should be omitted.  I understand that the laurel hedge has now substantially re-grown.  It is to be sincerely hoped that, in the light of this judgment, the Derwents will recognise that the actions taken in 2000 were not only unneighbourly but wrong in law, and that more normal relations can be restored. 
Lord Justice Waller
35.	I agree.