Over Taylor Biggs

The matter was referred to the Court of Appeal because an unclear Conveyance, led the Judge who first heard the case to take account of the physical features of the land.  These were not mentioned in the Deed.  The affected owner believed the ownership of the boundary contradicted the Conveyance.  The dispute was over ownership of the bed of a stream.  One neighbour alleged the boundary was the line of a post and wire stock fence that stood back from the southern side of the stream.  The fence existed at the time of the Deed but was not mentioned in it, nor was it shown on a plan.

At the first hearing the Judge decided that the bed of the stream had passed to the neighbour, along with a strip of the southern bank as far back as the fence.  The Judge decided that the position of the fence would have been considered by a reasonable person to be the boundary line of the property that had been transferred.

The other neighbour complained that this determination contradicted earlier principles adopted over the years by the Courts.

Mrs Hodgson's property comprised a detached bungalow and garden.  The property was conveyed by a Conveyance of 1993 and included a plan taken from the Ordnance Survey Map.  It was described as being for identification purposes only. 

One property was edged red, the other edged blue.  The stream was merely marked by a black line. No measurements were given.  Nothing was stated about who actually occupied which areas.  In 1993 there was a visible wooden post and wire fence two feet to the south of the stream and was said to be in good condition.  It replaced and earlier wire fence to stop sheep grazing and getting into the stream. 

The Judge found that the fence marked the boundary between the two properties.  The southern bank of the stream was several feet high.  The northern bank was distinctly lower and had easier access.  The land below the southern bank was pasture and beyond the northern bank was the cultivated garden of the house.  In addition, there was a line of trees along the northern side of the stream.  In 2006, Mrs Hodgson had agreed to these trees being removed as they overhung and blocked out light. 

Additionally, since 2006 there had been a stone wall along the southern bank of the stream.  It was built by her neighbours.  It involved doing work in the stream and excavating it.  There were steps leading from the wall down to the stream.  In not demanding that the wall be demolished, Mrs Hodgson merely wanted confirmation that the boundary line was the former fence.

The Court of Appeal decided that the Judge in the first case had heard the actual evidence given by both parties.  The Court of Appeal had also looked at the Conveyance plan.  It commented that it contained no relevant measurements and did not fix the position of the boundaries.  The use of the red and blue edging merely gave indications but were insufficiently precise to make clear the exact position of the boundary on the plan.  Therefore, they felt the Judge was entitled to review the physical features at the date of the 1993 Conveyance and to base his decision upon principles of sheer common sense.

Pennock v Hodgson (2010) Court of Appeal