The Adjudicator to HM Land Registry

Case Number:			2004/0463
Title Numbers:			WSX192736 WSX275929
Properties:	Fyning Coombe, Rogate, Petersfield, Hampshire GU31 5BU and Fyning Coombe Lodge, Rogate, Petersfield, Hampshire GU31 5BU
Applicant:		Mrs Elizabeth Florence Dominquez
Applicant’s representation:		In person
Respondents:	Mr Derek John Mason and Mrs Magda Rathle Mason
Respondents’ representation:	In person
Adjudicator: 				Deputy Adjudicator Simon Brilliant
Inspection held:			28 November 2005
Heard at:	Bournemouth County Court on 29 and 30 November 2005, Harp House on 1 and 2 December 2005 and Procession House on 6, 7 and 16 February 2006

DECISION

Introduction

1.	This is a boundary dispute between neighbours whose titles are derived from a common vendor.  In 1903 a substantial house was built for Mr James Eastwick at Rogate, near Petersfield, in large grounds in a delightful rural location close to the border of Sussex and Hampshire.  It was known as Fyning Combe (“the estate”) and lay to the south of the road from Rogate to Midhurst (“the main road”).

2.	In 1959 the estate was in the ownership of the trustees of the then occupiers, Mr John Gore and his wife, Lady Janet Gore (“the trustees”).  It was decided to break up the estate and sell part of it at auction in 3 lots.

3.	The 3 lots are shown in the colour auction plan at page 43 of the bundle.  Lot 1 consists of the main house and large grounds (“the House”).  Those grounds contain both woodlands and a formal garden. The House is situated on what I shall call “the green land”, “the brown land” and “the yellow land”.  Lot 2 consists of the gardener’s residence and smaller grounds with outbuildings (“the Lodge”) situated on what I shall call the “pink land”.  Lot 3 consists of grounds and outbuildings but no residence.  I shall call this the “blue land.” 

4.	The House was sold subject to 2 rights of way.  The first, over the yellow land, is of no relevance to this dispute.  The second, over the brown land and for the benefit of the Lodge, is of relevance.  The brown land is that part of the driveway to both the Lodge and the House, snaking south from the main road, lying between the points A and B on the auction plan.  Mr and Mrs Mason contend that the brown land includes not just the hard surface of the driveway, but some land adjacent to it.

5.	Subsequent to the auction in 1959 at which the 3 lots were sold:

(1)	In  1961 the trustees sold further land to the north east of the House.   I shall call this “the north east land” and it is shown on the plan at page 311 in the bundle. There is no dispute relating to the north east land before me.

(2)	In  1963 the trustees sold further land to the west of the blue land and the House.   I shall call this “the red land” and it is shown on the plan at page 61 in the bundle.

(3)	Thereafter the remaining part of the estate was sold off. 

6.	Annexed to this decision is plan 1, which is a modified version of the auction plan and the plan used for all the conveyances bar that of the red land.  It is schematic only but shows:

(1)	lot 1, being the House, coloured green, brown and yellow;

(2)	lot 2, being the Lodge, coloured pink;

(3)	lot 3, being the blue land, coloured blue;

(4)	the eastern edges of the red land marked in red; and 

(5)	the north east land, coloured purple.  

7.	Mr and Mrs Mason, the respondents, are the present freehold owners of:

(1)	the House; and 

(2)	 the north east land.

8.	Their postal address is Fyning Coombe, Rogate, Petersfield, Hampshire GU31 5BU and their title is registered under title number WSX192736.  I am told that all the land with which I am concerned is in West Sussex except for postal purposes. Mr and Mrs Mason purchased the House and the north east land on 30 August 1994 and were registered as the first proprietors on 21 November 1994.

9.	Mrs Dominguez, the applicant, is the present freehold owner of:

(1)	the Lodge; 

(2)	the blue land; and 

(3)	the eastern part of the red land.  

10.	This land is yet to be registered. Her postal address is Fyning Coombe Lodge, Rogate, Petersfield, West Sussex GU31 5BU. Mrs Dominguez is the daughter of Mr and Mrs Elderfield, who were the first purchasers of the Lodge, the blue and the red land, when the estate was broken up. Soon after Mr and Mrs Elderfield acquired the red land they sold on the western part of it but have retained the eastern part abutting the blue land and the House. Mrs Dominguez has been familiar with all this land since late 1959 when she was aged about 14.  Mr Elderfield died in 1988 and Mrs Elderfield died in 1998. Mrs Dominguez lived in the Lodge between 1960-1975 and has lived there with her husband since 1996.  During 1975-1996 she visited it regularly.

11.	A number of disputes have arisen between the parties as to the precise location of the boundary between their respective properties.  On 16 September 2003 Mr and Mrs Mason lodged a caution against first registration of certain land adjoining but outside their registered title. On 10 October 2003 Mrs Dominguez applied for first registration of the Lodge, the blue land and the eastern part of the red land.  On 15 October 2003 Mr Mason wrote to Land Registry a letter which has been treated as an application for rectification of Mr and Mrs Mason’s title.  On 15 February 2004 Mr and Mrs Mason objected to Mrs Dominguez’s application for first registration.

12.	On 23 June 2004 Land Registry referred the dispute between the parties to the adjudicator for determination.

13.	Annexed to this decision is plan 2, which shows the boundary of Mr and Mrs Mason’s title as at present registered in blue, and the location of the 5 issues between the parties, which I have been asked to decide.  It also shows Land Registry’s proposed boundary of Mrs Dominguez’s title in red.  References to lettered points in this decision are to the letters shown on plan 2, unless otherwise indicated.

Issue 1

14.	Mr and Mrs Mason contend that the north western boundary of the House between point C and point F has not been correctly mapped in the register.  It is said that the blue triangle immediately below point C, at present within Mr and Mrs Mason’s title, falls within Mrs Dominguez’s title and should be removed from the Mr and Mrs Mason’s title.  On the other hand, it is said that the 2 areas of land coloured orange on plan 2, at present outside Mr and Mrs Mason’s title, fall within Mr and Mrs Mason’s title and should be added to it. The first of these areas is between the blue triangle and point D. The second of these areas is between point D and point F.

Issue 2

15.	This concerns the bank in front of the Lodge.  On plan 2 this runs from west of point A to point B.  Is the border between the Lodge and the House along the southern foot of the bank where it meets the hard surface of the driveway, as Mrs Dominguez contends?  Or is the border further north at the top of the bank itself, as indicated by the green line on plan 2 and as Mr and Mrs Mason contend? 

Issue 3

16.	This concerns the border between the Lodge and the brown land along the eastern side of the Lodge.  Mr and Mrs Mason contend that the brown land includes not just the whole of the driveway but some of the bank to the west.  Mrs Dominguez says that the Lodge’s land starts at the foot of the bank adjacent to the hard surface of the driveway.

Issue 4

17.	This concerns the line of the western boundary of the House between point G and point Y.  Mr and Mrs Mason say it has not been correctly mapped in the register and that it should run along a line through points G-X-Y. It is said that the land to the east of the green line running line through points G-X-Y, at present outside Mr and Mrs Mason’s title, should be added to Mr and Mrs Mason’s title.

Issue 5

18.	This concerns the green triangle between points Y-Z-V where the south west corner of the House meets the south east corner of the red land. The green triangle is at present outside Mr and Mrs Mason’s title and Land Registry is proposing to include it within Mrs Dominguez’s title.  This issue has 2 aspects.  First, although the green triangle does not fall within the green land conveyed to the Lodge in 1960, Mr and Mrs Mason say that it was intended that it was to be included within their title.

 19.	Secondly, Mr and Mrs Mason claim ownership by adverse possession. They say that a fence between point Y and point V has enclosed the green triangle within the House. But this was not part of the dispute referred to me by Land Registry.  There is no reference to adverse possession in the case summary (pages 144-145 of the bundle). 

20.	Important evidence to the adverse possession issue could only come from Mrs Wood, Mr and Mrs Mason’s predecessor in title, but she has not appeared as a witness. Accordingly, it was agreed at the outset of the hearing that I could not deal with the adverse possession part of issue 5.  Mr and Mrs Mason can, if so advised, make a separate application to alter the register in respect of the green triangle at some time in the future.

21.	Mr and Mrs Mason asked me not to include the green triangle within Mrs Dominguez’s title prior to any application they might make to claim title on the basis of adverse possession.  I decline to accede to this request.  If I am correct that the issue of adverse possession is not before me then I have no jurisdiction just because there might one day be such a claim not to include the green triangle within Mrs Dominguez’s title.  Even if the issue of adverse possession were before me then, unless I adjourned it, I would have to dismiss such a claim as, absent Mrs Wood’s evidence, it would be bound to fail.

22.	Mr and Mrs Mason have the opportunity to secure Mrs Wood’s attendance in the future and, in the meantime, the potential claim should not in itself prevent Mrs Dominguez being registered as proprietor of the green triangle. According to Mrs Wood’s statutory declaration which is at page 204 of the bundle she occupied the green triangle from 1983.  If her evidence is accepted (it is challenged by Mrs Dominguez) then Mr and Mrs Mason will establish 12 years adverse possession by 1995.  Under the transitional provisions of the Land Registration Act 2002 they will not be prejudiced by having to bring a claim against a registered owner.  This is particularly so as the 12 years they hope to rely on will have been clocked up before the Human Rights Act 1998 came into force.

The witnesses

23.	Mrs Dominguez called the following witnesses:

(1)	Mrs Dominguez.  

(2)	Mr Aguilera, a friend of the Dominguez family who has been visiting the Lodge since the mid 1970’s.

(3)	Mrs Edwards, a cousin of Mrs Dominguez, who used to visit the Lodge every week between 1962 and 1966 and has continued to visit it at less frequent intervals ever since.

(4)	Mr Eade, whose family’s connection with the estate goes back to 1903 as explained below.

(5)	Mr Dominguez, who has been married to Mrs Dominguez since 1971.  He has been acquainted with the Lodge ever since 1967 when he started courting Mrs Dominguez.

24.	Mr and Mrs Mason called the following witnesses:

(1)	Mr Mason.  

(3)	Mr Bruce, who is an experienced chartered surveyor and whose reports are dated 6 October 2005 and 29 November 2005.

25.	I must now set out in a little more detail the conveyancing history.	Following the auction in 1959 the lots were sold off as follows.

The conveyance of the Lodge

26.	By a conveyance dated 9 February 1960 the trustees conveyed the Lodge to Mr and Mrs Elderfield, Mrs Dominguez’s parents.  

27.	The parcels clause is as follows:

“ALL THAT piece or parcel of land situate in the Parish of Rogate in the County of Sussex having a frontage on the Northern side to the Rogate to Midhurst highway and being formerly part of Fyning Combe which said piece or parcel of land is more particularly delineated on the plan annexed hereto and thereon coloured pink TOGETHER with the dwelling house and other buildings erected thereon”.

28.	There are no measurements in the parcels clause.  There is no physical description of the parcel save to say that it is south of the main road.  The conveyance plan is not expressed to be for “identification only”.  The conveyance plan is therefore crucial. It is at page 14 of the bundle and is copied directly from the auction plan.

 29.	The conveyance plan, like the auction plan, is on a scale of 50 inches to 1 mile (1:1,267).  The auction plan had in turn been taken from the 1912 Ordnance Survey plan, which is at page 58 of the bundle.  This is the 3rd County Edition at a scale of 25 inches to the mile (1:2,534).  So, whoever had prepared the auction plan had scaled it up (doubled it) from the 1912 Ordnance Survey plan.   Mr Bruce explained to me that the 1912 Ordnance Survey plan would have been prepared by men on foot using chain length measures.  In 1959 the land agents had probably asked a firm of printers to scale up the 1912 Ordnance Survey plan by hand to make the auction plan.  There were no photocopiers to enlarge documents in those days.  Mr Bruce said that such an enlargement would not purport to be particularly accurate.

30.	Clause 2 of the conveyance contains the following:

	“Whereas the property hereby conveyed and the [blue land and the House] have hereto-fore been enjoyed as one property but on the completion hereof the existing supply (consisting of a main tank and stop cocks situate on the property hereby conveyed (my emphasis) and pipes in or under both properties) and drainage … will be shared in accordance with the rights exception and reservation hereinbefore expressed …”.

31.	Provision is made in the conveyance for the owners of the Lodge to maintain at their expense such parts of the once communal water supply and drainage systems as serve only the Lodge and to pay a proportion of the costs of maintaining the other parts of those systems.  The owners of the Lodge are granted rights over the blue land and the House in connection with the free passage and running of the water supply and drainage.

32.	The conveyance also granted a right of way for the benefit of the Lodge over the driveway between points A and B on the auction plan (see plan 1).  The right granted is set out in paragraph (c) of the first schedule as follows:

	“To pass and repass at all times and for all purposes over the driveway coloured brown between the points A and B on the said plan”.

The blue land conveyance

33.	By a conveyance dated 21 March 1960 the trustees conveyed the blue land to Mr and Mrs Elderfield.   

34.	The parcels clause is as follows:

“ALL THAT piece or parcel of land situate in the Parish of Rogate in the County of Sussex having a frontage on the Northern side to the Rogate to Midhurst highway and being formerly part of Fyning Combe which said piece or parcel of land is more particularly delineated on the plan annexed hereto and thereon coloured Blue TOGETHER WITH any buildings erected thereon”.

35.	The conveyance plan is at page 198 of the bundle and, again, is taken from the auction plan.

The conveyance of the House

36.	By a conveyance dated 25 March 1960 the trustees conveyed the House to Mr Forman, Mr and Mrs Mason’s predecessor in title.  

37.	The parcels clause is as follows:

“ALL THAT piece or parcel of land situate in the Parish of Rogate in the County of Sussex and formerly part of the waste lands called Harting Coombe and Fyning Wood which is more particularly delineated on the plan annexed hereto and thereon coloured green, brown and yellow TOGETHER WITH the dwelling house known as FYNING COMBE Rogate aforesaid and other buildings erected thereon”.

38.	The conveyance plan is at page 17 of the bundle and, again, is taken from the auction plan.

The north east land conveyance

39.	By a conveyance dated 4 May 1961 the trustees conveyed the north east land to Mr Forman. 

40.	The parcels clause is as follows: 

“ALL THAT piece or parcel of land situate in the Parish of Rogate in the County of Sussex and formerly part of the waste lands called Harting Coombe and Fyning Wood which is more particularly delineated on the plan annexed hereto and thereon coloured pink and yellow and having a frontage to the main road from Rogate to Midhurst of 180 feet or thereabouts and a depth therefrom on the East side of 132 feet or thereabouts”.

41.	The conveyance plan is at page 311 of the bundle and appears to have been traced from the auction plan.

42.	This conveyance is different to all the others in that the parcels clause and the conveyance plan have references to measurements.  The lengths of 180 feet and 132 feet referred to in the parcels clause are marked on the conveyance plan.

The red land conveyance

43.	By a conveyance dated 28 January 1963 the trustees conveyed the red land to Mr and Mrs Elderfield.  

44.	The parcels clause is as follows:

“ALL THAT piece or parcel of land situate in the Parish of Rogate in the County of Sussex having a frontage on the Northern side to the Rogate to Midhurst highway and bounded on the East by adjoining property belonging to the Purchasers and on the South West partly by Recreation ground part 274 on the Ordnance Survey Map 1912 edition and partly by a public way or driftway which forms a junction with the said Rogate to Midhurst highway which said piece or parcel of land is more particularly delineated on the plan annexed hereto and thereon coloured red”.

45.	The conveyance plan is at page 61 of the bundle and appears to have been hand copied from the 1912 Ordnance Survey plan.  

The water supply  

46.	I heard oral evidence from Mr Eade whose statement is at pages 77-78 of the bundle.   He was born in 1948.  His grandfather had helped build the estate.  His father was a bricklayer and plumber who undertook work for Mr John and Lady Janet Gore when they owned the estate.  His aunt was the housekeeper and cook in the House.  Mr Eade recalls the 1950’s when he was a schoolboy and he assisted his father who was working on the system then supplying water to the estate.  He has an unrivalled knowledge of that system.  I found him a careful and helpful witness and I accept his evidence.

47.	Mr Eade explained to me that originally there was no supply of water from the mains either to the House or the Lodge.  The sole supply of water was from a very deep well situated on land then within the estate to the south of the House.  The water was brought up towards the surface by machinery located in a pump house, which is shown as the “Engine House” on the 1912 Ordnance Survey plan.  The water was then pumped to a tank (“the tank”) by underground pipes.  At the time of the auction sale the water to the tank was supplied by the mains rather than from the deep well, but there was no direct link yet between the properties and the mains.

48.	It is common ground that the tank is situated within the grounds of the Lodge.  It is marked by a square at the western edge of the pink land.  To the west of the square is written the word “Tank”, although confusingly that word is written within the blue land rather than within the pink land. The tank is the “main tank” referred to in clause 2 of the conveyance of the Lodge set out in paragraph 30 above.

49.	Mr Eade told me that from the tank a large pipe runs to a chamber (“the chamber”) in which there is situated a stopcock, which operated as a main valve.  From the chamber run a number of separate pipes, some servicing the House, one going to the Lodge and one going to the stable block next to the Lodge.  The stopcock controlled the entire water supply, to both the House and the Lodge.  Water could only go from the tank to either property via the chamber. 

50.	A bomb in the last war had hit the pump house and the large pipe carrying the water supply to the chamber had been cracked.  Mr Eades’ father was engaged in the 1950’s in relaying that pipe and Mr Eades would spend his school holidays and Saturdays helping his father.  He recalls Mr Gore saying to his father that because the tank and the chamber were both in the flower garden of the Lodge, his father should notify the occupants of the Lodge (at that time the gardener) of any disruption to the flowerbeds.

51.	The chamber is the structure which is covered with a flagstone and is shown in the lower photograph at page 100 of the bundle and in the lower photograph at page 337 of the bundle.  The inside of the chamber is shown in the photograph at page 229B of the bundle.  The chamber can be seen marked at the point “WV” on the plan at page 35 of the bundle.  It is situated within the grounds of the House on the green land, to the north west of point D. 

52.	In my judgment the reference to “stop cocks situate on the property hereby conveyed” in the phrase, “ … the existing supply (consisting of a main tank and stop cocks situate on the property hereby conveyed (my emphasis) …” in clause 2 of the conveyance of the Lodge, is a reference to the stopcock or valve in the chamber.  This is because the equipment within the chamber was of crucial importance within the water supply system.

53.	Clause 2 of the conveyance of the Lodge assumes that the chamber is on the land conveyed: it is supposed to be within the pink land.  However, as already explained, it actually falls within the green land belonging to the House.

Boundary agreements

54.	In due course, in considering issue 1, I shall have to decide where the boundary between the Lodge and the House lies in the arc between point C and point F.  Mrs Dominguez says the boundary is as registered along the blue line, thus giving her the 2 pieces of land coloured orange on plan 2.  Mr and Mrs Mason say the boundary is along the red line, thus giving them the 2 pieces of land coloured orange.  But first I must consider whether the boundary has been agreed even further to the east of the blue line.

55.	No one has ever been certain of where the boundary lies in the arc between point C and point F.  There has been confusion for over 45 years.  This area is not a formal garden.  It is partly woodland and partly an unkempt grassy area with well established rhododendrons.  There are photographs at pages 93, 99, 100, 107C and 337 of the bundle. 

56.	The reason for the confusion is this.  If, as part of the conveyance of the Lodge suggests, the chamber is within the Lodge’s land then the boundary must be well to the east of where it would appear to be marked on the red line between point C and point F.  Indeed, it would even be to the east of where it is marked on the blue line between point C and point F.  

57.	I accept Mrs Dominguez’s evidence that there has never been a fence along this boundary because of the uncertainty over where it really lay. Mrs Elderfield was obsessed by the fact that she did not know where this boundary was.  This was something that upset her.

58.	I have heard a considerable amount of evidence that Mr and Mrs Elderfield made use of land well to the east of this boundary as shown on plan 2.  Mr and Mrs Dominguez as well as Mr Eade gave evidence, which I accept, that those living in the Lodge used the House’s land as far to the east as the star put on the plan at page 57 in the bundle.  This star lies in a straight line between point C and point F.  There was never any objection from the owners of the House.  Those living in the Lodge planted this part of the House’s land, and at times animals were kept on it.

59.	At page 28 in the bundle is a 1:500 plan, which I shall call “the Gibson plan”. It records the location of 4 pegs, Gibson A - Gibson D, put in the ground by Gibsons, estate agents in Liss, on Saturday 7 March 1992.  Gibson A is close to point F.  Gibson B is at a point 20 metres south east of the tank within the House’s land, approximately at a point in a straight line between point C and point F.  Gibson C and Gibson D are near to points C and B.

60.	The Gibson plan states on the face of it to be “New boundary location pegs between Fyning Combe House and Fyning Combe Cottage.”  That is not in itself evidence that an agreement was reached but is the way a surveyor might label a proposal.  It records the date the pegs were installed and gives the scale as 1:500. Mrs Dominguez told me that she found the Gibson plan in the Lodge, after her mother died.  It is on A3 paper and is probably a photocopy.  In 1992 she was not living at the Lodge but she was visiting regularly.  She had become a joint owner with her mother of the Lodge, the blue land and the eastern part of the red land in November 1988.  

61.	She recalls that the House had been put on the market in September 1992.  Mr and Mrs Wood’s marriage had broken down.  Mrs Elderfield was by then a 76 year old widow living alone at the Lodge.  She was very independent minded.  

62.	Mrs Dominguez remembers a day in 1992 when she went to the Lodge to look after her horses she kept there.  She was standing outside the rear of the stable block adjoining the Lodge when she saw that her mother and Mr Wood were walking very purposively and were looking at the points where the Gibson pegs later appeared.

63.	Mr Dominguez gave evidence about the events of 7 March 1992.  He was at the Lodge that day.  He could not but help noticing what was going on.  3 young men were using laser equipment on the orders of Mr Wood.

64.	Mrs Dominguez also recalls being told by Mrs Elderfield that Mr Wood had wanted to peg the boundaries.  Mrs Elderfield also told Mrs Dominguez that some days after the meeting with Mr Wood he wanted her (Mrs Elderfield) to sign a document, and if she did not she would have to go to court.  Mrs Elderfield showed Mrs Dominguez the document, which was the Gibson plan.  Mrs Elderfield was, apparently, quite content to have the land as shown on the Gibson plan but there is no evidence that she ever signed any document.  According to Mrs Dominguez, her mother was awkward to deal with and quite independent.

65.	Mrs Dominguez never had any direct discussions with Mr Wood about this boundary.

66.	There was no reference to the Gibson plan or to any boundary agreement or, indeed, even to any boundary dispute when Mrs Wood sold the House to Mr and Mrs Mason in 1994.  I ordered disclosure of the relevant conveyancing documents.  Years later Mr and Mrs Mason found in the House a copy letter dated about May 1991 from Gibsons to Mrs Elderfield, to which was attached a plan similar to but different from the Gibson plan.  This letter and plan no longer exist.  It said that if Mrs Elderfield agreed with the plan she should returned a signed copy so that exchanged copies could be sent to the solicitors.

67.	Mrs Dominguez was somewhat embarrassed by the Gibson plan as she felt that it was too generous to the Lodge but she took the view that as Mr Wood had paid for and arranged the survey he must have been satisfied with it.  She did not think at the hearing before me that she could rely upon the Gibson plan as a binding agreement because it had not been signed.

68.	The Gibson pegs remained in place from 1992 to 2003.

69.	For almost 9 years after Mr and Mrs Mason bought the House, no problem arose as to the precise location of the boundary between the Lodge and the house in the arc between point C and point F.

70.	In 1998 Mr Dominguez carried out some routine clearance of the land south of a line between point C and point D and planted rhododendrons along what he understood to be the boundary, which was in accordance with the Gibson pegs.  Mr and Mrs Mason did not object.  Mr Dominguez’s recollection is that when he planted them Mr Mason agreed that they were not encroaching on his land.  Mr Mason’s recollection, which I prefer, is that he was only showed what had been planted after it had happened and he did not agree there was no encroachment.  But at that time the relations between the neighbours were still good and there was no reason for a dispute over what had happened.

71.	By February 2003, relations had begun to deteriorate due to incidents further north to which I shall have to return.  In February 2003 Mr Mason noticed that in the area near to Gibson B (ie in a line between point C and point F), Mr Dominguez had undertaken pruning and some ground levelling.  He wrote on 12 February 2003 complaining that Mr and Mrs Dominguez were assuming the boundary ran along the line of the Gibson pegs rather than as shown on the relevant conveyances. 

72.	On 13 or 14 February 2003 Mr Dominguez showed Mr Mason the Gibson plan, as justification for where he believed the boundary to be.  Mr Mason told me in evidence that this was the first time he had seen it.  It is clear from the subsequent disclosure that the House had not been sold on the basis that the Gibson plan determined this boundary.  There is no reference at all to the Gibson plan in the conveyancing documents.  So I accept Mr Mason’s evidence on this point.

73.	On 17 February 2003 Mr and Mrs Mason wrote to Mr and Mrs Dominguez:

	“We are not suggesting that the wooden posts have been moved from the positions shown in your paper [the Gibson plan], but we have no idea what the piece of paper is based on or whether it is legal.  You said that your paper was agreed by the Woods.  Could you please let us have a copy of that with a note explaining where it came from and what it is based on, so that we can send them to our solicitor for him to advise us on which boundary is the legal one.”

74.	This was somewhat disingenuous as Mr and Mrs Mason had by that time discovered the letter from Gibsons dated about May 1991 to Mrs Elderfield, to which was attached a plan similar to but different from the Gibson plan. No doubt they did not wish to alert Mr and Mrs Dominguez to this correspondence.  They knew by then that Gibsons had no records preserved and must have been hoping that Mr and Mrs Dominguez had no better evidence of agreement having been reached. 

75.	On 12 June 2003 Mr Dominguez wrote:

	“… you and I checked (on Thursday 13 February 2003) the boundary marked by the four surveyors’ posts [the Gibson pegs] and you agreed that these posts were in the correct place … [The Gibson] posts were installed professionally in accordance with the recognised boundary on the instructions of Mr Wood … in 1992.  As you have never queried the position of these posts until now, we were not aware that you had a problem with this section of the boundary.”

76.	On 16 June 2003 Mr Mason replied that whilst he had agreed on 13 February 2003 that the Gibson pegs seemed to match where they were positioned on the Gibson plan, he had not agreed that the Gibson plan marked the true boundary and he had pointed out that the deeds map was different to the Gibson plan.  I accept Mr Mason’s evidence that he had never agreed with Mr Dominguez that the Gibson plan had marked the boundary along the arc between point C and point F.

77. 	I have to consider whether a boundary agreement came into being in 1992 as a result of what transpired between Mr Wood and Mrs Elderfield.  The law on this is set out at paragraph 17.011.1 of Emmet on Title.  Such an agreement does not need to be evidenced in writing nor does it need protection by registration as an estate contract to bind successors in title.  See Neilson v Poole (1969) 20 P&CR 909, Burns v Morton [1999] 3 AER 646, Joyce v Rigolli [2004] EWCA Civ 79 and Chadwick v Abbotswood Properties Ltd [2004] EWHC 1058 (Ch).

78.	My conclusion is that I should not infer an agreement was reached in 1992.  Although a boundary agreement need not be in writing, there still needs to be a meeting of minds.   It seems that Mr Wood and Gibsons were acting on the premise that there would be no agreement unless something was signed.  This is based on what Mrs Elderfield told Mrs Dominguez and on what Mr Mason recalls was in the earlier letter from Gibsons he found.  Although the deal offered by Mr Wood was favourable to Mrs Elderfield, there is no evidence that she accepted what was on offer and there is evidence from her own daughter that she was awkward: she may have been after a land swap as evidenced by some markings she made on the original of the auction plan.  Of course, if Mrs Elderfield had put up a fence along the line of the Gibson pegs I could have reached a different conclusion. 

79.	Moreover, I am not satisfied on the balance of probabilities that Mr Wood had authority to make a boundary agreement.  Mrs Wood was the owner.  By 1992 the marriage had broken down and he was to depart to the United States before she sold in 1994.  If a concluded agreement had been reached with her authority in 1992 then she must have lied in the answers to the enquiries before contract in 1994.  I am disinclined to make such a finding without her having had an opportunity to give evidence.

80.	The burden is on Mrs Dominguez to satisfy me that I should infer that a boundary agreement was reached in 1992 and I do not consider the evidence before me justifies in reaching such a conclusion.

81.	I now turn to the issues I have to decide.

Issue 1

82.	This concerns the boundary between point C and point F.  The blue line on plan 2 represents the extent of Mr and Mrs Mason’s title as at present registered.  From point C the blue line travels west a short distance.  It then turns south at a right angle thus forming the second side of the blue triangle.  It then snakes south west to point D before travelling in a straight line to point F.

83.	There are no boundary features in place along the boundary between point C and point F.

84.	The red line represents where Mr and Mrs Mason say the boundary should be in accordance with the relevant conveyances. From point C the red line travels south west thus forming the hypotenuse of the blue triangle.  It then travels south west in a convex curve to point D.  At point D it travels west a very short distance.  This is across the track which can be seen on plan 1 running along the eastern extremity of the blue land and the western extremity of the House.  It then travels south east in an irregular convex curve to point F.

85.	It will be seen from looking at plan 2 that there are 3 areas of land highlighted between point C and point F.

The blue triangle

86.	Mr and Mrs Mason accept that the blue triangle falls properly within the Lodge’s grounds and should be removed from their title.

The path land
		
87.	The area coloured orange between the blue triangle and point D I shall refer to as “the path land”.  Mrs Dominguez says that the blue line along the eastern side of the path land follows an old path and it is likely that it was intended in 1960 that this would be the boundary between the Lodge and the House.  This path was flanked in part by a retaining wall in 1960. There are photographs of the line of the path at pages 99 and 100 of the bundle. This blue line is shown marked on the 1976 Ordnance Survey plan at page 38 of the bundle.  Land Registry placed the boundary along this line on first registration of the House in 1994.

88.	Mr and Mrs Mason say that the red line along the western side of the path land is an accurate measured representation of where the boundary is marked on the auction plan, the plan of the conveyance of the Lodge and the plan of the conveyance of the House.  Mr Bruce has carefully plotted the red line.  Mr and Mrs Mason say that the path land should be added to their title.

The shed land

89.	The area coloured orange between point D and point F I shall refer to as “the shed land”.  Mrs Dominguez’s shed, on the red land at point E, can be seen marked on plan 2.  There are photographs at pages 94, 101, 229, and 339 of the bundle.  Mrs Dominguez says that the shed land has always been used by the owners of the Lodge for access to the shed and to the red land. 

90.	Mr and Mrs Mason say that the red line along the western side of the shed land is an accurate measured representation of where the boundary is marked on the auction plan, the plan of the conveyance of the Lodge and the plan of the conveyance of the House.  Again this has been carefully plotted by Mr Bruce. Mr and Mrs Mason say that the shed land should be added to their title.

Discussion of issue 1

91.	I accept the accuracy of Mr Bruce’s measurements.  The red line between point C and point F is a proper representation of where the boundary lies as marked on the auction plan, the plan of the conveyance of the Lodge and the plan of the conveyance of the House.

92.	The parcels clause in the conveyance of the Lodge is set out in paragraph 27 above.  In respect of this boundary the plan is clear and unambiguous and there is no verbal description of the parcel at all.  

93.	I am unable to accept Mrs Dominguez’s argument that the parties most likely intended the boundary between point C and point D to follow what was a path in 1960.  There is no evidence that along this boundary any particular physical feature was to be determinative. It must be remembered that the blue land was a separate lot.  The red land was not up for sale at this time and there was no reason to know that one day the Lodge and the red land would be in common ownership.    In 1960 a path leading down to point D was going nowhere.  Only in 1963 did it become a useful link to the red land.

94.	I accept that there was an informal track or path used by those living in the Lodge to walk down to point D.  But I do not accept that it was a pronounced feature, or that the buyers and sellers of the Lodge in 1960 could objectively have understood it to mark the boundary.  A path in this location does not show on the 1961 Ordnance Survey plan.  I accept what Mr Bruce says about the 1976 Ordnance Survey plan.  What is shown is a single line, which is not a path. 

95.	A track leads from the main road south along the eastern extremity of the blue land.  At point D it runs south along the western extremity of the House’s grounds: this is the shed land.  Mrs Dominguez says it was not logical to cut the track at point D.  It should be part of the Lodge’s land so that the whole track remains in the same ownership.  Again, the answer to this is that in 1960 the owners of the Lodge did not own the red land so the shed land would have been a sore finger leading nowhere, whilst intruding into the House’s grounds for no useful purpose.

96.	Mrs Dominguez also relies heavily on the fact that the shed land affords her convenient and ready access to the red land and her shed.  But again what she overlooks is that when the Lodge was conveyed in 1960 it was not conveyed with the red land.  That was purchased 3 years later.  It cannot have been contemplated when Lodge was sold that one day the owner of the Lodge would also own the red land.  There is an alternative entrance to the shed.

97.	My only doubt about the position of the boundary along the arc between point C and point F is the fact that the chamber was supposed to be included within the Lodge’s land, as I have already explained in paragraph 53 above.

98.	In my judgment the plan in this respect is clear.  The land conveyed is “more particularly delineated” on the plan, so the plan must prevail.  See the decision of Harman J in Kensington Pension Developments Ltd v Royal Garden Hotel (Oddenino’s) Ltd [1990] 2 EGLR 117 following Eastwood v Ashton [115] AC 900.

99.	If there were a mistake about not including the informal path or the chamber within the pink land on the conveyance plan, that would be a matter for rectification of the conveyance of the Lodge, as opposed to the construction of the conveyance.  No application has ever been made for rectification of the conveyance, which is now over 45 years old.  No such application is before me.  I am unable to construe the conveyance of the Lodge as including the informal path or the chamber.

100.	The boundary between point C and point F is along the red line.  The blue triangle should be removed from Mr and Mrs Mason’s title and the path land and the shed land should be added to Mr and Mrs Mason’s title.

101.	I would say, however, that until comparatively recently no one has ever suggested that the owners of the Lodge did not own the path land or the shed land.  For over 40 years the owners of the Lodge used it unchallenged.  The Lodge may well have acquired the benefit of a right of way over the path land and the shed land.  I have made it clear that issues relating to such rights of way and their priority as against Mr and Mrs Mason are not before me and will have to be raised subsequently by Mrs Dominguez, if so advised.  Equally, I am not determining any claim she might have to adverse possession of any part of the shed land, although such a claim does not seem strong.  I am simply determining the boundary.

Issue 2

102.	This concerns the bank in front of the Lodge.  This runs from near to the tree marked on plan 2 (to the west of point A) to point B.  Is the border between the Lodge and the House along the southern foot of the bank where it meets the hard surface of the driveway, as Mrs Dominguez contends?  Or is the border further north at the top of the bank itself, as indicated by the green line on plan 2 and as Mr and Mrs Mason contend?  The bank and the tree (which is yellow-green) can be seen in the foreground of the photograph at page 92 of the bundle and the bank can be seen in close up in the photograph at page 223 of the bundle.

103.	I accept Mrs Dominguez’s evidence that her family has been responsible for the maintenance of the whole of the bank since 1960.  Her family planted the trees and shrubs on it, including the rhododendrons and the yellow-green tree. Mr Dominguez planted on it and put down netting to stabilise it.  Mr Mason accepts that he has never planted on it although his gardener was instructed to sweep up the part of the bank nearest to the hard surface of the driveway.

104.	An unfortunate dispute arose when in August 2003 Mr Dominguez cut back some of the rhododendrons on the bank, as can be seen in the photograph at page 223 of the bundle.  Mrs Mason found this aesthetically offensive.  Fortunately, that is a matter outside my jurisdiction, although I can well understand the distress which may have been unintentionally caused.  Mrs Mason felt strongly that the part of the bank near to the driveway belonged to the House and she was entitled to prevent the view along the driveway from being altered in a way she found unacceptable.

105.	On 1 September 2003 Mr and Mrs Mason wrote to Mr and Mrs Dominguez complaining of, “your actions of the previous weekend when you damaged our property by severely hacking down some of our mature and long-established rhododendron bushes.”  Despite the understandable sense of outrage, it seems to me that this was a somewhat ambitious claim to be making as Mrs Dominguez and her parents had planted and looked after these bushes for over 40 years.

106.	The auction plan is used as the plan to both the conveyance of the Lodge and the conveyance of the House and it shows the driveway snaking south between hashed lines.  This can be seen on plan 1. At point B on plan 1 the driveway ceases to be coloured brown and becomes coloured green.  To the north of the driveway coloured green is a rectangle between hashed lines entirely coloured pink.  Mrs Dominguez says that this rectangle is the entire bank and she owns the whole of it.    Mr and Mrs Mason say that the hashed line at the south of the rectangle does not represent where the bank meets the hard surface of the driveway but is the top of the bank.  In other words the driveway coloured green on the conveyance plans is not just the hard surface but also includes a significant part of the bank as well.  Mr and Mrs Mason say that the true location of the boundary is marked in green between just west of point A and point B (on plan 2).

107.	Mr Bruce supports Mr and Mrs Mason in their argument. Mr Bruce has taken the conveyance plan (1:1,267) and blown it up to 1:500 (page 347 of the bundle).  From this document he has measured the distance from the south of the Lodge to where the Lodge’s land ends and the House’s land begins.  This is 14 metres.  He then took actual measurements on site.  It is 11.18 metres from the Lodge to the northern side of the bank.  There is then a measurement of 1.83 metres on the bank before reaching the top of the bank.  This comes to 13.01 metres. This is where he put peg 1, which is on the green line on plan 2.  He says this is where the boundary is. 

108.	One trouble with this argument is that Mr Bruce is trying to be very exact when working from small scale plans which are enlarged in retrospect.  As he himself says in paragraph 7.50 of his report at page 269 of the bundle, “It is difficult to be entirely accurate.”  The width of the dispute here is about 2.5 metres.  Such a dispute cannot be satisfactorily resolved by a measured analysis of what has been coloured in on a 1:1,267 plan.  Moreover, the 1912 Ordnance Survey plan, which is the basis for the conveyance plans, is not entirely satisfactory and does not fit well with an overlay of the latest Ordnance Survey plan (compare pages 345A and 345B of the bundle).  For example, Mr Bruce acknowledges that the shape of the tank is incorrect on the conveyance plans.   

109.	Another difficulty with this argument is that the dispute here is different from the dispute in issue 1.  The boundary between point C and point D is clearly an artificial one marked by a curve.  It was not purporting to follow a natural feature.  But what is striking about the boundary in dispute in issue 2 is that on the conveyance plans the change of colouring from pink to green so clearly runs along the hashed lines.  The conveyance plans were taken from the 1912 Ordnance Survey plan.  Hashed lines denote an unbounded feature, such as a driveway (see paragraph 2.10 of Mr Bruce’s report at page 243 of the bundle). 

110.	I now quote from the judgment of Lewison J in Chadwick v Abbotswood Properties Ltd [2004] EWHC 1058 (Ch) paragraphs 43 and 44:

	“The principles applicable to the interpretation of a transfer of real property are not open to serious doubt.  A transfer, like any other contractual document, must be interpreted in the light of the background facts reasonably available to the parties.  Although it has been said that extrinsic evidence is not admissible to contradict the words of a transfer where the language of the transfer is clear, this may need reconsideration in the light of the modern approach to the interpretation of contracts: Partridge v Lawrence [2004] 1 P&CR 14 per Peter Gibson LJ … Where the definition of the parcels in a conveyance or transfer is not clear, then the court must have recourse to extrinsic evidence, and in particular to the physical features on the ground.  As Bridge LJ put it in Jackson v Bishop (1979) 48 P&CR 57: “It seems to me that the question is one which must depend on the application of the plan to the physical features on the ground, to see which out of two possible constructions seems to give the more sensible result.”

	The question is one to be answered objectively: what would the reasonable layman think he was buying?  Since the question must be answered objectively, it follows that evidence of the parties’ subjective intentions, beliefs and assumptions are irrelevant; as are their negotiations”.

111.	Mr Mason met this argument in his closing address by submitting that a reasonable layman would have thought, as Mr and Mrs Mason had thought when they bought the House, that the face of the bank adjacent to the hard surface of the driveway would belong to the House. Mr Bruce’s measurements were useful evidence as confirmation of this belief.

112.	Mr Mason then made an impressive submission listing factors which would have led a reasonable layman to have this belief:

(1)	It would be very hard to put up a fence along the bottom of the curving bank if that indeed were the boundary.

(2)	The owner of the House needs to own the face of the bank in order properly to protect the driveway on the green land, which is used solely for the benefit of the House.

(3)	The face of the bank can only be maintained satisfactorily if there is access to it from the driveway on the green land.  The owner of the Lodge has no such access.

113.	However, in my judgment a reasonable layman looking at the conveyance plans would think that the hard surface of the driveway linking the main road and the House would belong to the House but that the whole of the bank would belong to the Lodge.  As Mrs Dominguez pointed out the hashed lines which mark out the whole length of the driveway follow from the hashed lines shown on the main road.  Those hashed lines on the main road clearly represent not the whole width of the road but the hard surface only.  On either side of the hashed lines is a space between the hashed lines and an unbroken line representing the grass verge which Mrs Dominguez tells me has always been there.  

114.	If the whole of the bank was not included how was the buyer to know how much was to be included?  It cannot seriously be suggested that he be expected to carry out a measured survey to calculate where peg 1 should be positioned.

115.	But absent such an exercise, the true boundary could not be known if Mr and Mrs Mason’s argument is correct.  Nor do his reasons, though well put, overcome the clear impression given by looking at the conveyance plan.  If the trustees had intended to allot some of the bank to the House, then some of what appears to be the bank on the conveyance plan would have been coloured in green. There is nothing in the conveyance of the Lodge that suggests part of the bank was to be within the House’s land.  The bank is entirely in pink.

116.	I have no doubt that Mr and Mrs Mason strongly believe they are right on this issue and are genuinely distressed as to what has occurred: but their subjective belief 45 years after the execution of the conveyance to which they were not parties at that time cannot be determinative.

117.	If I had any doubt on this issue (which I do not) I would have relied upon evidence of user as an aid to construction: see Lewison: The Interpretation of Contracts 3rd edition paragraph 11.05 and the cases there cited.  This user is firmly in favour of Mrs Dominguez as I have set out above.  The yellow-green tree is a most obvious visible feature placed on what Mr and Mrs Mason say is the House’s land.  Mr Elderfield planted it in the 1960’s. No one has ever said he was trespassing.

Issue 3

118.	This concerns the border between the Lodge and the brown land along the eastern side of the Lodge.  Mr and Mrs Mason contend that the brown land includes not just the whole of the driveway but some of the bank to the west.  Mrs Dominguez says that the Lodge’s land starts at the foot of the bank adjacent to the hard surface of the driveway. This boundary can be seen in the photographs at pages 220-222, 226-228, 231-232 and 330-332 of the bundle. 

119.	Again an unfortunate dispute arose when Mr Dominguez re-built a retaining wall abutting the driveway and put down some boulders in order to prevent the dustcart straying over the driveway and damaging the bank.  Mrs Mason found this aesthetically offensive, again a matter outside my jurisdiction.  Mrs Mason felt strongly that this part of the bank belonged to the House.  

120.	Mr Bruce supports this argument. In paragraph 7.55 of his report at page 270 of the bundle he explains that on the plan to the conveyance of the Lodge the brown driveway can be measured as 6 metres wide.  On the ground the hard surface can be measured as 4.5 metres.  Logically, 1.5 metres on the west side of the hard surface should fall within Mr and Mrs Mason’s title as part of the driveway.

121.	Again, Mr Mason made a number of cogent submissions to me:

(1)	Mr and Mrs Mason had always believed that they owned a strip of land to the west of the brown driveway.

(2)	Mr and Mrs Mason have kept that strip tidy over the years.

(3)	It would have been obvious to anyone buying the House or the Lodge that the line of trees to the west of the hard surface of the driveway shown in the photograph at page 200 of the bundle would belong to the House.

(4)	It was common sense that the larger property (the House) would have the benefit of features enhancing and preserving the driveway.

(5)	It would be very hard to put up a fence along the bottom of the curving bank if that indeed was the boundary.

(6)	There are signs to the House on both sides of the entrance at the main road.

(7)	The bank was created by digging out earth to form the driveway.

(8)	There are issues of drainage suggesting the House should own land to the west of the hard surface of the driveway.

122.	Again, I reject this argument for the reasons given in respect of issue 2. Moreover, if a strip of 1.5 metres to the west of the hard surface is part of the brown land, then Mrs Dominguez has a right to drive her motor car over it.  That would be absurd.  This is not what a reasonable lay person would think he or she was buying.  

The geography relevant to issues 4 and 5

123.	This area is woodland and the precise boundary not easy to discern. There is a fence still in place from point F to point G.  It is common ground that it correctly marks the location of the boundary.  From point G to point Y there used to be a continuation of the fence, but it is no longer up.  At point Y there is a gatepost marked by an orange peg.  A short distance to its south east is another gatepost.  Originally the fence continued from that gatepost to point Z and thence anti-clockwise around the perimeter of the House.  But there is no longer any fencing south east of point Y.  Point Y can be seen in photographs at page 107H and 341 of the bundle.

124.	Point Z is also marked by an orange peg.  It is the point where the registered titles of the House and Fyning Hill Estate, to the south, meet. Point Z can be seen in a photographs at page 341 of the bundle.

125.	The north west boundary of the Fyning Hill Estate is registered along a line from point Z through point V to point U.  Land Registry proposes to register that as the southern boundary of the red land.

126.	If one looks at the conveyance of the red land at page 61 of the bundle, this proposal would appear to give the red land more land than that to which it is entitled.  This is because to the layman’s eye the southern boundary on the conveyance appears to run along a line from point U to point Y rather than from point U to point Z via point V. I should say for completeness that I do not agree with Mr Mason’s submission that on the conveyance the southern boundary appears to run along a line from point U to point X.

127.	I mean no disrespect when I say that I do not consider that this slippage southwards of the red land’s boundary in itself is of any concern to Mr and Mrs Mason.  It does not affect their registered title at all.  Any issue over this boundary is a matter between Mrs Dominguez and Fyning Hill Estate.  In fact there is no dispute at all between Mrs Dominguez and Fyning Hill Estate over the location of this boundary.  So it can safely be taken that the southern boundary of the red land now runs along a line from point Z through point V to point U.

128.	Part of the additional land gained to the red land by this slippage of the southern boundary is the green triangle between points Y-Z-V.

129.	Fyning Hill Estate’s fence which runs from point U to point V, turns 90º south east at point V. Thus, there is no fence between point V and point Z.

Issue 4

130.	This concerns the line of the western boundary of the House between point G and point Y.  Mr and Mrs Mason say it has not been correctly mapped in the register and that it should run along a line through points G-X-Y. Mrs Dominguez says it runs as shown on the register.

131.	Mrs Dominguez’s case is as follows.  She can remember back to the early 1960’s.  The House was surrounded by a wire mesh fence along this south west boundary which went as far as the filter bed.  This fence went from point G to point Y, although there may have been a deviation of up to a foot (0.3048 metres).  In about 1969, the then owner, Claggart Brachi, replaced the wire mesh fence with a 2 wire fence which she thought was in the same position.  Mrs Wood purchased the House in 1983.  At some time before she sold it to Mr and Mrs Mason she replaced the fence.  Mrs Dominguez believes that it was replaced in approximately the same place.

132.	Mr and Mrs Mason took the fence down in September 2003 but put it back again in November 2003 slightly to the west of where it had been, so Mrs Dominguez moved it back to where it had been.  Then Mr and Mrs Mason took it down for good.

133.	At some time during 2003, whilst the fence was still up, Mrs Dominguez instructed surveyors, Shaw Colegate, to conduct a topographic survey.  It is at pages 34 and 35 of the bundle.  It shows the fence as “existing fence” in the position Mrs Dominguez says it has always been in.  Apart from a slight curve near to point Y it runs straight from point G to point Y.  It does not extend west to point X.

134.	After Mr and Mrs Mason took down the fence the second time, Mrs Dominguez placed some heavy logs and some of the fence posts along a line which she believes marks where the fence had been.  These can be seen in photographs at pages 340 and 341 of the bundle.  On 19 May 2004 Land Registry carried out a survey and produced a 1:500 plan, which is at pages 36-37 of the bundle.  This shows “pieces of logs and posts laid on ground, with discarded wires” and “1.2 metre post and wire fence some posts old (25 years) and 10 years approximately – old posts may be reused from old fence.”

135.	The latter description is of the fence between point F and point G.  It corroborates Mrs Dominguez’s evidence as to the dates.  The former description is of the material laid down by Mrs Dominguez.  It follows the registered title boundary.

136.	Mr and Mrs Mason’s case is as follows.  When they purchased the House in 1994 the fence ran along a line through points G-X-Y.  It was in that position when Mr Bruce came to the peg the boundaries on 21 August 2003.  Unfortunately, his last peg was peg 12 at point F and he was not asked to look at the fence south of point G.  

137.	Mr and Mrs Mason took the fence down in September 2003.  When they put it back again in November 2003 it was not slightly to the west of where it had been, as Mrs Dominguez maintains, but in the position it had always been in.  Mrs Dominguez moved it eastwards into the House’s land. 

138.	Mr Mason accepts that the 1976 Ordnance Survey plan shows the fence running from point G to point Y.  But he says that the plan to the conveyance of the Lodge, the 1912 Ordnance Survey plan and the 1961 Ordnance Survey plan support his argument that the boundary runs along a line through points G-X-Y.  He explains away the Shaw Colegate plan by saying that this shows the fence after it had been moved by Mrs Dominguez. But if, as Mrs Dominguez asserts in her list of documents, the Shaw Colegate plan was originally produced in August 2003, it must show the fence before any one took it down.

139.	This issue is different to the earlier ones in that there has always been a fence along this boundary.  It is therefore particularly unfortunate that there should now be any dispute as to where the boundary lies.  Moreover, this area is a backwater.  None of the aesthetic considerations affecting the driveway apply here.  The amount of land in dispute is small.

140.	In my judgment I need to establish where the fence was originally erected.  This is the best evidence of where the boundary is.  First, the court will be astute to find an implied agreement that where a fence has been erected is indeed the agreed boundary (Burns v Morton [1999] 3 AER 646).  Secondly, I can rely upon evidence of user as an aid to construction: see Lewison: The Interpretation of Contracts 3rd edition paragraph 11.05 and the cases there cited.

141.	This approach is to be preferred to that adopted by Mr Bruce of attempting to plot where the fence should run by measurement from a boundary peg placed by Shaw Colegate, on behalf of Mrs Dominguez, 1.87 metres east and 3.74 metres north of enclosure 5100.  

142.	On this issue I prefer the evidence of Mrs Dominguez.  I accept that she never moved the fence off its original line and that the Shaw Colegate plan shows its true position.  The logs mark where it has always been. I do not find, on the balance of probabilities, that the fence has been moved to the detriment of Mr and Mrs Mason at some time in the past.

143.	Accordingly, the boundary south of point G runs along a line correctly recorded in the plan to the registered title of Mr and Mrs Mason.

Issue 5

144.	Mr and Mrs Mason are claiming title to the green triangle other than by way of adverse possession.  I have already explained that I cannot deal with the adverse possession claim. This alternative claim is put on the basis that although the green triangle does not fall within the green land conveyed to the House in 1960, it was intended that it was to be included within Mr and Mrs Mason’s title.

145.	The argument is that a small area of land was not conveyed into any of the titles and it would be common sense for it to be included within Mr and Mrs Mason’s title (see paragraph 7.70 of Mr Bruce’s report at page 273 of the bundle). 

146.	I do not accept this argument.  This land is not within Mr and Mrs Mason’s paper title.  Since the red land was conveyed after the House was conveyed, any overlooked land would logically have been conveyed with the red land and not earlier to the House.  As I have already explained what has happened is that the southern boundary of the red land has slipped south and the south eastern point of the red land now meets the western boundary of the House further to the south east than is shown in the conveyance of the red land.  None of this is a matter for Mr and Mrs Mason to become concerned about.  Any dispute would be between Mrs Dominguez and her neighbour to the south, the Fyning Hill Estate.  

147.	As I have also already explained the registered northern boundary of the Fyning Hill Estate which can be seen at page 177 of the trial bundle matches the proposed southern boundary of the red land as shown on plan 2. The existing southern boundary of the red land is an acceptable one to both relevant parties.  It is not a matter about which Mr and Mrs Mason can complain.

Conclusion

148.	I have had to analyse each of the issues separately because each one is quite different to the others.  However, for the reasons I have endeavoured to explain I shall direct the Chief Land Registrar to register Mrs Dominguez with a title with boundaries according to the red outline on plan 2.  This will involve rectifying Mr and Mrs Mason’s title by removing the blue triangle and adding the path land and the shed land.

149.	Any party wishing to make an application for costs should do so in writing within 28 days of receipt of this decision.

Dated this Tuesday 21 February 2006

BY ORDER OF THE ADJUDICATOR TO HM LAND REGISTRY