JUDGMENT
BUCKLEY L.J. This is an appeal from a judgment of Foster J. delivered on March 31, 1976, relating to the ownership of about three-quarters of an acre of industrial land at Ilkeston, in Derbyshire. The land is question was formerly in the ownership of the Duke of Rutland, and lies in the immediate area or neighbourhood of a colliery (which I shall call the "Manners Colliery") of which at the relevant time a company called the Manners Colliery Co. Ltd. (whom I shall call "Manners") were lessees under a mining lease from the Duke.
In September 1920 the Duke sold by auction a very large number of freehold lots in this area, subject to the mining lease. Manners bought, amongst other lots, lot 795. This comprised OS122, part of OS124, part of OS317, OS340, and small parts of OS126B and OS126C. OS126C was a pathway running along the northern and north-western boundaries of OS317, including a small triangle of land near the north-west extremity of OS317. Lot 795 was described in the sale particulars as coloured yellow on plan No. 34, which was a plan bound up with the particulars, and I shall call it "the sale plan"; and as consisting of accommodation land and a playing field, and as containing an area of about 20 acres and 23 perches.
The particulars then set out the following schedule relating to this lot. The schedule is in three columns, as follows:
"No. on Plan Description Ordnance Area Acres
122 Sports Ground 6.113
124 Grass 7.427
126D Grass 0.340
317 Grass 5.926
340 Bungalows and Gardens 0.339
--------
Total Acres 20.145"
Reference to the sale plan shows clearly that part of OS124 and part of OS317 were not coloured yellow and so were not intended to be included in lot 795. The greater part of that part of OS317 which was not coloured yellow is the land the ownership of which is now in dispute between the parties, to which I shall refer as "the disputed land." The schedule to which I have referred contains no reference to OS126C, but part of this, including the triangle, was clearly shown coloured yellow on the sale plan. The figure "126D" is mentioned on the sale plan, but the Ordnance Survey figure "126C" is not mentioned on the sale plan. The piece of land designated "126D" in the schedule formed an integral part of OS126B on the Ordnance Survey map, where it is not given any distinguishing number of its own. The designation "126D" was presumably devised by the draftsman of the sale particulars to identify this particular little piece of land. It is marked with that number on the sale plan and coloured yellow to signify that it formed part of lot 795.
The sale to Manners of lot 795, and of other lots, was completed by a conveyance dated July 23, 1921, and made between the Duke of the first part, certain trustees of the second part, and Manners of the third part. The original of that conveyance has been lost, but an abstract of it is in evidence.
The abstract of the parcels in that conveyance is in these terms:
"All and singular the messuages and hereditaments situate in the town or parish of Ilkeston in the county of Derby containing 170 acres 2 roods 5 perches or thereabouts, which were specified in the first schedule thereto and were by way of identification only delineated on the plan number 1 annexed thereto and thereon coloured blue, pink, yellow and green."
The area coloured yellow on the annexed plan no. 1 (to which I shall refer as "the conveyance plan") accords precisely with lot 795 as delineated and coloured yellow on the sale plan. In particular, the disputed land is left uncoloured. Part 3 of the first schedule to the conveyance as abstracted contains particulars of the land coloured yellow on the conveyance plan. This part of the schedule is headed "Accommodation land and playing field coloured yellow on plan no. 1," and contains a table in precisely the same form and terms as the schedule relating to lot 795 in the sale particulars, except that the headings "No. on plan" and "Description" to the first two columns are omitted. The heading "Ordnance Area Acres" to the third column is retained. The acreage of the whole is totalled at 20.145, as in the sale particulars.
By a conveyance on sale dated December 7, 1933, Manners conveyed to Ilkeston Collieries Ltd.:
"All those two pieces or parcels of land containing 13 acres 1 rood and 16 perches or thereabouts and being fields Nod. 124 (part) and 317 on the Ordnance Survey map (1915 edition) for the parish of Ilkeston in the County of Derby situate in the borough of Ilkeston in the said county of Derby and more particularly delineated on the plan drawn hereon and thereon coloured red."
The last mentioned plan shows coloured red only that part of OS124 and that part of OS317 which were comprised in lot 795 in the 1920 auction sale. The land coloured red on the plan does not in particular include the disputed land. Manners also sold and transferred to Ilkeston Collieries, Manners' interest under the mining lease at or about this time.
In 1947 Ilkeston Collieries' interest under the mining lease, and in the property conveyed by the conveyance of December 7, 1933, vested in the National Coal Board. In 1964 the plaintiffs bought from the National Coal Board the fee simple in a triangle of land which had been OS340 on the 1915 Ordnance Survey map. This is shown as OS523 on the plan annexed to the amended statement of claim, which is taken from the 1937 revision of the Ordnance Survey map
In the following year the defendants bought from the National Coal Board what was described in the relevant conveyance as
"All that piece of land situate in the parish of Ilkeston in the county of Derby containing 5.535 acres or thereabouts being portions of the enclosures numbered 529 and 530 on the Ordnance Survey map (1937 Revision) of the said parish and for the purpose of identification only is delineated on the plan annexed hereto and thereon coloured pink and green."
OS529 and 530 on the 1937 revision were the same closes as those which were OS317 and 126C on the 1915 Ordnance Survey map. Part of OS530 (formerly OS126C) running along the northern boundary of OS529 (formerly OS317) which appears to have been coloured yellow on a the 1921 conveyance to Manners, was excluded from this sale to the defendants.
In 1972 the plaintiffs bought from the Duke and Duchess of Rutland the fee simple of the land edged red on the plan annexed to the amended statement of claim, which had formerly been a railway cutting used for the purposes of certain railway lines forming part of the Manners Colliery undertaking, which I shall call "the mineral cutting." The conveyance included a small area to the north-east of the cutting, which is marked "tanks" on the statement of claim plan. This was unexpected by the plaintiffs, and I shall call that small area "the boilerhouse site." As a result of the fact that that conveyance included the boilerhouse site, Mr. Milner, one of the directors and one of the principal shareholders in the plaintiffs, made some investigations, as a result of which he became aware of the sale plan, and it appeared to him that the sale plan showed clearly that the sale in 1920 had not included in lot 795 the disputed land it showed not only that the boilerhouse site was not included in lot 795, but also that a narrow strip of land extending along part of the northern boundary of the mineral cutting, which is shown on the statement of claim plan verged with a black or dark blue line and hatched (which I shall call "the little cutting") and an area extending in a north-easterly direction from the north-eastern boundary of the boilerhouse site, as far as and including a pond abutting on that part of OS528 (formerly OS126B) which on the sale plan had been designated 126D (which area I shall call "the finger"). That area is shown on the statement of claim plan edged in black or dark blue and partly hatched. It is those three areas, the boilerhouse site, the little cutting and the finger, which constitute the disputed land in the present action.
By a conveyance on sale dated October 23, 1972, the Duke and Duchess conveyed to the plaintiffs all the estate, right, title or interest vested in them in the little cutting and the finger.
In about 1967, the defendants had erected a boilerhouse on the boilerhouse site, and had extended the car park of their factory, which stood on OS530 (formerly OS317) to the north of the disputed land over the area of the little cutting. They maintain no claim, possessory or otherwise, to the finger, but the plaintiffs claim damages in respect of rubbish alleged to have been tipped on it by the defendants; but in this action the defendants have made claim to the boilerhouse site and the little cutting.
Foster J. rightly held that the defendants' title depended upon the true construction and effect of the 1921 conveyance from the Duke to Manners. The plaintiffs could have no better title to the disputed land than the Duke and Duchess could convey to them. This must depend upon whether the Duke had parted with the disputed land in 1921, or not. The judge found as a fact that on the sale plan OS317 was only partly coloured yellow and that the disputed land was excluded from the sale. He held, however, that he could not have regard to the contract of sale, or the sale plan, for the purpose of construing the 1921 conveyance. He also declined to look at the history subsequent to the 1921 conveyance for the purpose of construing that conveyance. Foster J. said:
"In my judgment all the court can look at to see what the 1921 conveyance did or did not convey, must be gleaned from looking at that conveyance, its parcels and its plan. In Hopgood v. Brown [1955] 1 W.L.R. 213, 228 Jenkins L.J. says: 'It is true that the plan is referred to as being for the purpose of facilitating identification only and therefore it cannot control the parcels in the body of the deed.' In Halsbury's Laws of England (1973), 4th ed., vol. 4, para. 834, it is said (and I quote): `It is common for a verbal description of the parcels to be followed by words incorporating a plan to be referred to "for the purposes of identification only." It seems that the effect of these words is to confine the use of the plan to ascertaining where the land is situate and to prevent the plan controlling the verbal description of the parcels.' In my judgment that passage correctly states the law."
He then referred to part 3 of schedule 1 and the conveyance plan and said of the latter:
"Compared with the map in the auction particulars, I can only describe it as a very rough and ready plan, but the yellow colour did not extend to the main railway line and clearly" - I think that must be intended to read "excluded" - "the three pieces of land in dispute."
The judge had before him only a copy of the abstract and of the plan no. 1 annexed to it. We also had copies of that plan supplied to us in this court, which are indeed rough and ready pieces of work; but we have had the advantage of seeing the original of the abstract and the plan annexed to it, and I am satisfied, looking at that plan, that the plan annexed to the original conveyance, which has been lost, was in fact an accurate tracing of the sale plan. Anyhow, the important feature of this part of the judge's judgment is his finding that the plan clearly excluded the disputed land. The judge went on to say:
"In view of the words `Ordnance Area. acres,' in my judgment the numbers on the left of the tables must refer to the number of the particular enclosures on the Ordnance map; that is that the whole of enclosure 317 was included in the sale. It is not stated (as in a later conveyance) that it was part of 317, and when I take into account that there never was any physical feature on the ground other than the fence along the main railway cutting to mark any boundary of that land, I am forced to the conclusion that by the 1921 conveyance, the Duke conveyed to Manners the whole of enclosure 317."
We have, I think, had the advantage of a more detailed analysis of the various plans and numbers than the judge had, as a result of which I feel unable to agree that the numbers on the left of the table contained in schedule 1 to the 1921 conveyance relate to Ordnance Survey closes. In the primary description of the parcels in the body of the conveyance, the schedule and the plan are linked together, and it seems to me, in the absence of a contra-indication, that the numbers in the schedule should be read as references to the corresponding numbers on the conveyance plan, where they are all to be found, and where they serve as a key to relate the descriptions contained in the schedule with what is shown on the face of the plan. Moreover, 126D is not a number which is to be found on the Ordance Survey map at all, and OS126C, part of which is coloured yellow on the conveyance plan, is not mentioned in the schedule. The reference to "Ordnance area" is rather puzzling, but it cannot mean the areas specified in the schedule on the Ordance Survey map, because Ordnance Survey close 124 is shown on the Ordnance Survey map as containing 7.967 acres, whereas in the schedule to the conveyance parcel 124 is shown as containing only 7.427 acres, and on the Ordnance Survey map OS317 is shown as containing 6.556 acres, whereas in the schedule to the conveyance parcel 317 is shown as containing only 5.926 acres. To hazard a guess, the words "Ordnance area" may have been intended to indicate that the areas specified in the schedule to the conveyance had been estimated from the Ordance Survey map without any independent survey; but that is speculation, for I do not think there is any evidence on that point.
Mr. Nicholls accepted that the areas in the schedule should be read subject to the words "or thereabouts" which are to be found in the description of the parcels in the body of the conveyance. Counsel for the plaintiffs has made an ingenious reconciliation of the areas, and I have been satisfied that, taking into account those parts of OS317, which were not coloured yellow on the conveyance plan, including not only the disputed land but also a small piece of land adjoining the reservoir close numbered 320A on the 1915 Ordnance Survey map and comprised in the close OS533 which is marked "reservoir" on the statement of claim plan (that is, the 1937 revision of the Ordnance Survey) and also taking into account the inclusion in the land coloured yellow on the conveyance plan of some part of OS126C (now OS529 on the statement of claim plan) a very close approximation to the acreage of parcel no. 317 in the schedule to the conveyance can be achieved. In these circumstances I feel constrained to reject the judge's view that the 1921 conveyance included the whole of OS317. How then is that conveyance to be construed and to take effect, having regard to the fact that the parcels are expressly stated to be delineated on the conveyance plan "by way of identification only"?
I have already read from the judge's judgment a reference to a passage in Halsbury's Laws of England, which says that it seems that the effect of such words is to confine the use of the plan to ascertaining where the land is situate and to prevent the plan controlling the verbal description of the parcels. I turn to the authorities to see how far that statement is justified by them.
The first case that I should refer to is Hopgood v. Brown [1955] 1 W.L.R. 213; that was a case in which a vendor sold two adjoining plots on a building estate to one purchaser, but conveyed them by separate conveyances, and the question arose at a later stage as to what was comprised in one of those conveyances. The parcels in that conveyance were described as set out, at p. 214:
"All that piece of land situate in the parish of Romford in the county of Essex part of the land known as the Havering Park Estate conveyed by a conveyance . . . which said piece of land has the several dimensions following, namely, a frontage to the . . . proposed Hamlet Road of 40 feet or thereabouts, a length along its south-west side of 170 feet or thereabouts and a width at its rear or south-east side of 31 feet or thereabouts, is adjoined on its north-eastern side by other land conveyed or about to be conveyed by the vendor to the purchaser, and comprises the whole of the plot numbered 56 and the southwesterly portion of the plot numbered 55 in the vendor's development of that portion of the estate and for the purpose of facilitating identification only is delineated and shown by the pink colour on the plan drawn on these presents, . . ."
It will be observed there that precise dimensions of three of the boundaries of the plot are given, from which the position of the fourth can easily be inferred by drawing a straight line between the ends of the two boundaries which it links. The case was in fact eventually disposed of on a point of estoppel and not of construction of the conveyance at all; but Jenkins L.J. said, at p. 228:
"It is true that the plan is referred to as being for the purpose of facilitating identification only, and therefore, it cannot control the parcels in the body of any of the deeds."
Morris L.J. said, at p. 230:
"The plan is to be looked at in order to assist in identifying the plot of land. If the plan is so used, there is nothing which suggests that the lines of the boundaries connecting the frontage to Hamlet Road with the rear are other than straight. That they should be so ould, in my judgment. be the natural supposition and inference."
I think that is all I need read from the judgments in that case because, as I have said, the case was eventually decided on a point of estoppel. I think they are obiter remarks, but they show the view that those two judges took of the effect of the words that qualified the use of the plan in that case.
The next case that I should mention is Willson v. Greene [1971] 1 W.L.R. 635, a decision of Foster J. In that case, before the conveyance was executed, a particular boundary of the property conveyed had been agreed and marked by pegs, and the judge took the view, no doubt rightly, that the plan in that case could not be referred to to contradict the physical evidence of the pegs. I think that case is mainly of interest for the present purpose because it contains some fairly extensive citation from a decision of this court in Webb v. Nightingale, March 8,1957; Court of Appeal (Civil Division) Transcript No. 84 of 1957.
In Webb v. Nightingale also a boundary had been marked out with pegs, and it was held that that boundary, being a physical feature known to the parties, must be taken to be the boundary of the property. Denning L.J. said about the plan, which in that case was annexed to, or drawn on, the conveyance (as reported in Willson v. Greene [1971] 1 W.L.R. 635, 639):
"`The plan on the conveyance was for the purpose of identification only. If it were an exact delineation there would be some difficulty in regard to the northerly northern boundary. It would run along the line of the hedge and trees and would make the northern boundary four to six feet further north of the post and wire fence. But as the plan is only for the purpose of identification, I think we can ignore that discrepancy. On the land itself the metes and bounds of this property were sufficiently shown so that anybody looking at the land at that date of the conveyance could have seen perfectly well what was being sold.'"
Romer L.J. said, at p. 639:
"`Now it seems to me that the words "for the purpose of identification only" are virtually meaningless in the context in which they are found in this particular document, and I have the greatest doubt as to whether the draughtsman had the smallest idea of what he meant by putting them in. Words of that kind are, of course, frequently used in conveyances in which the parcels are described in the body of the deed. In such cases the plan is merely to assist identification, and, in the event of any inconsistency arising, is subordinate to the verbal description.'"
That, I think, is a helpful definition of the effect of such words as "for the purpose of identification only."
Next I should mention a decision of Megarry J. in Neilson v. Poole (1969) 20 P. & C.R. 909. There a fairly extensive property had been divided by conveyance at various times into three parts and the question arose as to what the true boundary was between two of those three parts. There was considerable discussion as to whether it was legitimate for the court to look not only at the conveyance upon which the question directly arose, but also at the history of the other conveyances. With that I do not think we need concern ourselves but Megarry J. having discussed that aspect of the case said, at pp. 915-916:
"I return, then, to the plantiff's conveyance. The essential parts of the first schedule contain two main features. First, what is conveyed is the land, dwelling house, garage and other buildings `known as Brooklands South.' That verbal description raises a question of fact: what, at the date of the conveyance, could be said to be `known as Brooklands South'? Secondly there are the words `. . . as the same are for the purposes of identification only more particularly delineated on the plan drawn hereon and thereon coloured blue.' One question that arises from this language is whether the verbal description is to prevail over the plan, or whether the plan is to prevail over the verbal description, or whether they are to be co-equals. "The collocation of the phrase `for the purposes of identification only' with the words `more particularly delineated on the plan drawn hereon' may be said to be unfortunate; and in that I think I speak temperately. The effect of a phrase such as `for the purposes of identification only,' or `for the purpose of facilitating identification only,' or `only for the purpose of identification,' seems to be to confine the use of the plan to ascertaining where the land is situated, and to prevent the plan from controlling the parcels in the body of the conveyance: see Hopgood v. Brown [1955] 1 W.L.R. 213, 228; Webb v. Nightingale, Court of Appeal (Civil Division) Transcript No. 84 of 1957. On the other hand, phrases such as `more particularly delineated,' or `more particularly described.' or `more precisely delineated,' used in reference to a plan, are words which tend to show that in case of conflict or uncertainty the plan is to prevail over any verbal description: see, for example, Eastwood v. Ashton [1915] A.C. 900; Wallington v. Townsend [1939] 2 All E.R. 225. "Where both forms of expression are used together, as in the present case, they may indeed tend to be mutually stultifying. Certainly I do not think that they give the plan any predominance over the parcels. Reading the conveyance as a whole, the most probable meaning, expressed as a paraphrase, seems to be that what is conveyed is whatever is known as Brooklands South, and that in order to discover the identity of Brooklands South (but for no other purpose) there is a more detailed delineation of it on the plan. Such language seems to negative any use of the plan as showing the precise boundaries of the land."
There, Brooklands South was a specific description of a piece of land, the boundaries of which could be established by extrinsic evidence. If the plan was not to control the parcels, the plan could not have any relation to the boundaries of what was known as Brooklands South, those being matters which were implicit in the explicit description of the parcel concerned as "what was known as Brooklands South"; and the observation by Megarry J. that words such as "for the purposes of identification only" seemed to him to confine the use of the plan to ascertaining where the land is situated, was I think an obiter observation on his part and not part of his decision at all, for he was not concerned merely with that phrase but with its use in conjunction with "more particularly delineated."
That case has been subsequently commented on in a later case in this court, which is not reported, and is called Moreton C. Cullimore (Gravels) Ltd. v. Routledge, February 11, 1977; Court of Appeal (Civil Division) Transcript No. 73B of 1977. The decision in that case was that a plan on the conveyance could not override an explicit declaration in the parcels that the plot conveyed contained 10 acres or thereabouts. The case related to a sale by the defendant, Mr. Routledge, to purchasers named Partridge of parts of two fields which comprised part of a field OS91 and also part of another field lying to the north of the first one, OS83. The Partridges were buying with a view to excavating sand and gravel from the areas bought; the sale was at the price of #220 an acre and the aggregate price was #2,200, the appropriate price for 10 acres. The vendor was under the impression that the part of OS91 comprised 5 acres and that the part of OS83 which was being sold comprised 5 acres. The parcels were described in this way:
"`. . . all those two pieces or parcels of arable land . . . situate in the parish of Duns Tew . . . numbered part 91 and part 83 on the Ordnance Survey map for the said parish'"
- and then Lord Denning M.R. interposes to say that the following are the important words and he continues to read the parcels:
"`and containing ten acres or thereabouts all which pieces or parcels of land are for the purposes of identification only more particularly delineated on the plan annexed hereto and thereon edged red'. . ."
The purchasers began to excavate the sand and gravel from the part of OS91 and they worked on up into OS83. In 1963 they sold what they had bought in 1955 to the plaintiff company, Moreton C. Cullimore (Gravels) Ltd.; shortly after that a dispute arose between the plaintiff company and the defendant, the original vendor, as to the extent of the land sold which lay in OS83.
I now read from the judgment of Lord Denning M.R., at p. 3:
"When the matter was looked into - I am speaking in round figures - it was found that, contrary to the farmer's impression, the part of southern field no. 91 was only about four acres. In order, therefore, to make up the ten acres which were conveyed (for #2,200) there would have to be six acres in the part of the northern field no. 83."
I pause to observe that it is not at all clear from the judgment why it was found that the part of the property sold which lay in field no. 91 was only about four acres. No explanation is to be found in the judgment of that fact, but it is basic to the decision in the case because the decision went upon the footing that since the property sold was ten acres in all and since only four acres of it lay in field 91, six acres must have lain in field 83. I continue reading Lord Denning M.R.'s judgment:
"So the gravel company said they were not limited only to five acres, part of the northern field no. 83. They were entitled to six acres of that field. Mr. Routledge, the farmer, said that that was not correct. He said that the gravel merchants should only get five acres of the northern field no. 83. He relied on the little plan itself as containing the boundaries and not on the acreages."
Then Lord Denning M.R. refers to what had occurred before the trial judge and he continues:
"As the argument developed before us [counsel] submitted that in this case the plan should prevail and not the specification of ten acres. Upon this point he has referred us to a number of authorities; but, if I may say so, it seems to me that the summary which was given by Megarry J. in Neilson v. Poole, 20 P. & C.R. 909 . . . is right."
Lord Denning M.R. then reads the passage that I have already read, beginning with the words, at p. 916 "The collocation of the phrase `for the purposes of identification only'" down to the words "in case of conflict or uncertainty the plan is to prevail over any verbal discription." Then Lord Denning M.R. says: "That seems to me an accurate statement of the rules of interpretation in regard to phrases such as this in a conveyance."
He then refers to another unreported case, Smout v. Farquarson, December 12, 1972; Court of Appeal (Civil Division) Transcript No. 381 of 1972, that was a decision of this court, to which we have not been referred. Lord Denning M.R. continues:
"In this case we have the words `for the purpose of identification only.' Those words seem to me to show quite clearly that the plan is only to be used to look and see roughly where the area is situated and not in any way to define the metes and bounds thereof. In this particular case it seems to me that the most accurate description which we must go by are the words `containing ten acres or thereabouts.' That interpretation is reinforced by the fact that it was payable at #220 an acre and the total sum paid was #2,200. So it is quite plain that the buyers of the land paid for ten acres. That was what the contract stipulated they should have `or thereabouts.' That `thereabouts' might leave a margin of one per cent or two per cent error, but no more. It is plain that in this case the part of southern field no. 91 was four acres. So in order to get their money's worth the purchasers were entitled to six acres of the northern field and not five acres."
In that judgment also, it seems to me that the reference by Lord Denning M.R. to "where the area is situate" is not part of the ratio decidendi of the case and is not a matter of decision, but obiter dictum.
Mr. Nicholls in the instant case has submitted that the plan attached to the 1921 conveyance cannot be looked at for the purpose of ascertaining any boundary; it is only to be looked at for the purpose of ascertaining the location of the property conveyed. When a court is required to decide what property passed under a particular conveyance, it must have regard to the conveyance as a whole, including any plan which forms part of it. It is from the conveyance as a whole that the intention must be ascertained. To the extent that the conveyance stipulates that one part of it shall prevail over another part of it in the event of there being any contradiction between them in the ascertainment of the parties' intention the court must of course give effect to that stipulation. So if the conveyance stipulates that the plan shall not control the description of the parcels, the court must have due regard to that stipulation; but in so far 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.
In the present case the plan on the conveyance does help in that respect to solve an aspect of the problem of identifying the property conveyed which is not solved in any way by the very brief description of the parcels contained in the schedule. When one looks at that plan (which, as I say, I think was an accurate tracing of the sale plan) it will be found that the southern boundary of OS317 on the 1915 Ordnance map, starting from a point in the south-west corner near to the reservoir, which is on Ordnance Survey 302A, follows what appears to have been a physical feature, a fence or a wall or something of that kind, marked with a solid black line, first in a south-easterly direction and then curving in a more directly easterly direction, until one reaches a point where it suddenly turns almost at a right-angle so as to run southwards for a short distance, and it then turns again in a north-easterly direction near the little cutting. the physical feature marking that boundary seems to have extended to near the north-eastern end of the little cutting, and if one looks at the sale plan treating it as being a facsimile of the plan on the 1921 conveyance, one can see that what is coloured yellow follows that boundary until one gets to the point at which it turns in a southerly direction and then, a little way down that jink, if I can use that word, the colouring ceases to go further south and follows a line which runs parallel, but further to the north, with the boundary on the Ordnance Survey plan, running along what was presumably near, if not actually, the crest of the northern bank of the little cutting. It ran parallel with the physical feature which forms the boundary of OS317, until that physical feature ceases to go any further in a north-easterly direction, and then it continued in what seems to be a straight line to a point which is identifiable on the Ordnance Survey map as being a point on the south-western boundary of OS126B, just north of the pond which is shown on OS317 in its most north-easterly part. There would, I think, be little difficulty in a surveyor pegging out the boundary so indicated by the yellow colouring, notwithstanding that the sale plan and the plan on the conveyance are on a very small scale. There is no other means of discovering what the parties intended to be the boundary between what was comprised in lot 795 and what constitutes the disputed land which was excluded from lot 795 but did form part of OS317. For my part, I can see no reason why the court should not have recourse to that indication on the plan of where the boundary was intended to be for the purpose of identifying what the parcel was that was included in the conveyance under the parcel no. 317. Accordingly, I consider that reading the 1921 conveyance alone and without reference to antecedent negotiations or contracts and without regard to subsequent history or other conveyances, it is possible to arrive at a conclusion that the disputed land was not included in the 1921 conveyance. I do so by looking only within the four corners of that conveyance and I think that the description of the parcel, taken in conjunction with the plan, provides sufficient material to reach that conclusion. I am comforted to find that that conclusion coincides with indications of what the parties thought had happened which are to be found in the later conveyancing history, but I do not rely upon that as the basis of my decision.
Accordingly, I think that upon the construction of the conveyance alone, the matter should be decided in favour of the plaintiffs. We had considerable argument from the plaintiffs upon the question of whether it was permissible in considering a problem such as this to have regard to extraneous matters such as subsequent conveyances. We were referred to a number of authorities on that subject, including the well-known and much debated decision of the Privy Council in Watcham v. Attorney-General of the East African Protectorate [1919] A.C. 533. But having regard to the view which I have formed upon the construction of the conveyance, it is not necessary for me to embark upon that ground, and I do not propose to do so.
For the reasons I have indicated, I would allow this appeal.
BRIDGE L.J. I agree. With all respect to the judge, it seems to me quite impossible to construe the parcels clause in the 1921 conveyance as including the entirety of OS317 as shown in the 1915 edition of the Ordnance Survey map. I reach that conclusion for the reasons given by Buckley L.J. and I cannot usefully add to his exposition of them. Once that conclusion has been reached, it inevitably follows that the only indication as to precisely what part of OS317 is intended to be conveyed is to be found in the conveyance plan.
I agree, again for the reasons given by Buckley L.J. and here in agreement with the conclusion reached by the judge, that the land coloured yellow on that plan does not include any of the disputed land.
I desire to add only a few words of my own as to the effect of the phrase "for the purpose of identification only" and other similar phrases, when applied to a conveyance plan. When a conveyance plan which is said to be for the purpose of identification only shows a boundary line which differs in detail from some physical feature on the ground which the conveyance otherwise indicates as the intended boundary line, it is clear that the latter prevails over the former. Similarly, where the conveyance shows clearly that a certain acreage is intended to be conveyed, but the adoption of a boundary from the plan "for the purposes of identification only" would leave only a reduced acreage, the boundary on the plan must yield to the indicated acreage.
These propositions and the cases which illustrate them are simply applications of the general principle, expressed by Jenkins L.J. in Hopgood v. Brown [1955] 1 W.L.R. 213, 228, that a plan which is said to be for the purpose of identification only "cannot control the parcels in the body of the deed."
I cannot think that any of the judicial pronouncements on this subject to which we were referred in argument and which have been cited in the judgment of Buckley L.J. were made in contemplation of a case where the boundary shown on a plan "for the purpose of identification only" is the sole means which the conveyance affords to indicate where that boundary is intended to be drawn. To refer to the plan in such a case in order to ascertain the boundary allows the plan merely to elucidate, not to control, the parcels. The ascertainment of boundaries being an integral part of the process of identifying the land conveyed, I cannot see why, as a matter of language, the qualifying words "for the purpose of identification only" should inhibit the use of the plan for this purpose when no other means is available by which the relevant boundary can be ascertained.
Mr. Nicholls, for the defendants, has submitted that in such a case there is no ascertainable boundary of the land conveyed, and the court must, in effect, abandon the attempt to construe the conveyance as an impossible task. He then says that the respective rights of the landowners on either side of the unascertainable boundary, in the event of dispute between them, must be determined in favour of the party in possession. If this were indeed the law, it would produce a lamentable situation in which the respective ownerships of two parties to the kind of conveyancing transaction under consideration, would be determined not by the conveyance but rather by what each was able to seize and hold. I can find nothing in the authorities to drive me to such an unattractive extremity.
I also would allow the appeal.
SIR DAVID CAIRNS. I agree that this appeal should be allowed. As we are differing from Foster J. I will state briefly in my own words the grounds on which I consider that the plan to the 1921 conveyance can properly be looked at to determine the extent of the land conveyed.
The parcels clause describes the subject matter of the conveyance as the land specified in the first schedule. The relevant part of the first schedule is headed "Accommodation land and playing fields coloured yellow on plan no. 1." That heading in itself may be said to require a reference to the plan, without the limitation of the words "by way of identification only"; but assuming that the words and figures that follow the heading contain the effective definition, it seems to me that the figures in the first column are more likely to refer to the figures on the plan mentioned in the heading than to the Ordnance Survey map.
This view is strengthened by the inclusion of 126D, which does not appear on the Ordance Survey map at all. Why the third column is headed "Ordnance area" is not clear, because the areas listed do not correspond with the areas on the Ordnance Survey map. But because the area given in relation to field 317 is substantially less than the area of the whole of field 317, it is plain that only part of that field is being conveyed.
The only sensible interpretation that can be given to the line "317; Grass; 5.926 "is" The part of field 317 coloured yellow on plan no. 1, of an area of 5.926 acres." If it could be shown that the part coloured yellow does not measure exactly 5.926 acres, then it may be that the boundary line would have to be drawn in such a way as to include no more than that area, nor less than that area; but I do not think it is shown that there is any significant difference between the two.
In the course of the hearing of the appeal, Mr. Nicholls, on behalf of the defendants, obtained the leave of the court to deliver out of time a respondents' notice. The document handed in this morning is in the form of a cross-appeal, but the effect of it is not to contend that the judge was wrong in his ultimate conclusion, but to say that he made two errors in the course of reaching that conclusion. Those two alleged errors are as follows
"(1) That the judge erred in finding that so much of the plan attached to the conveyance dated July 23, 1921, as shown in an abstract of title dated 1933 as was thereon coloured yellow excluded the parcels of the land, namely, the car park, the boiler house and the finger of land, being the parcels of land title to which was in dispute in this action: (2) that the judge erred in finding that the boundary created by the conveyance of July 23, 1921, excluded the said parcels of disputed land in that the effect of such a finding was to prevent the defendant's predecessor in title from obtaining 5.926 acres in respect of plot 317 as referred to in the first schedule to the said conveyance."
In my judgment neither of these findings was erroneous. It appears to me quite clear, on examination of the conveyance plan, that the land coloured yellow does not include the disputed land, and while it is impossible to be certain that the land coloured yellow in field 317 is exactly 5.926 acres, I do not think it is shown that the area is less than that
ORDER
Appeal allowed with costs.
Declaration accordingly.
Action to be restored to Chancery Division.
Leave to appeal refused.
Crown Copyright acknowledged
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Date: 12 November 2002