Chancery Division
Willson and Another -v- Greene and Another, Moss Third Party
Date: 10-Nov-1970
FOSTER J.
This case is an unfortunate boundary dispute between two neighbours, over a very small strip of land. The plaintiffs are Mr. and Mrs. Willson, who live at Wilmer Cottage, Shilton Road, Carterton, in Oxfordshire, and the defendants are Squadron Leader and Mrs. Greene, who live in the neighbouring property, called 4 Pine Trees, Shilton Road. The defendants have brought in a third party, Mr. D. C, W. Moss, who at one time owned both the plaintiffs' and the defendants' land.
The background: Prior to September 1964, Mr. Moss owned a farm known as Rock Poultry Farm, Shilton Road, and was minded to sell it. He called in Mr. H. G. Williams, a partner in the firm of Ellison Williams & Co., estate agents, to advise on the best way of disposing of the farm. Mr. Williams advised that it should be divided into three plots, which are easily identified on plan 'A' annexed to the statement of claim. The most southern plot was edged blue on plan 'A' and was to consist of a 60 foot frontage to Shilton Road and a 60 foot rear boundary. Next to this was to be the second plot, edged red on plan 'A', with a frontage of 50 feet to Shilton Road, The third plot was a larger plot, edged yellow on plan 'A'. Outline planning permission was obtained allowing one house on the blue plot, one on the red, and four on the yellow plot. On the red plot there was a bungalow in which Mr. and Mrs. Moss lived. On the yellow plot there was only a derelict bungalow.
The conveyancing: (a) On September 22, 1964, Mr. Moss contracted to sell the red plot, and Wilmer Cottage, to Mr. and Mrs. Willson. (b) On October 8, 1964, a conveyance of the red plot was executed by Mr. Moss in favour of Mr. and Mrs. Willson. (c) On February 28, 1966, Mr. Moss contracted to sell the yellow land to Colemans Contractors (Oxford) Ltd. which I will call 'Colemans'. (d) On March 29, 1966, this contract was completed by a conveyance of the yellew land by Mr. Moss io Colemans. (e) On June 10, 1966, Colemans contracted to sell to Squadron Leader Greene and Mrs. Greene the fourth plot on the yellow land, nearest to Wilmer Cottage, that is the Willsons' property. (f) On July 6, 1966, this contract was completed by a conveyance. It is this land which is known as 4 Pine Trees, Shilton Road.
The disputed land: The disputed land which is the subject of this action is the boundary between Wilmer Cottage and 4 Pine Trees. Originally this land was delineated as the orange land on plan 'B' annexed to the statement of claim, but now the plaintiffs only claim that it consists of a triangular piece of land which at its widest is five feet, and not six as shown on plan 'B', although retaining the 16 foot line from what has been called the apex point to Shilton Road. It is this plot of land which I will call the orange land and which is in dispute between the parties. The defendants say that the boundary is a straight line from the 55 foot rear frontage of Wilmer Cottage to a 50 foot frontage on Shilton Road. The plaintiffs say that the line has what has been called a kink in it so as to bring the orange land within the property sold to them.
The questions: I think that there are three main questions to be decided, which can be stated as follows: First: By the conveyance of October 8, 1964, did Mr. Moss convey to Mr. and Mrs. Willson the orange land? Secondly, if yes, did Mr. Moss purport to convey the orange land to Colemans by the conveyance of March 29, 1966? And, thirdly, if yes, is Mr. Moss liable to the defendants for damages for breach of the implied covenants as to title?
I will deal with the first question which concerns the conveyance of October 8, 1964. On September 4, 1964, a meeting was held on the site at which were present Mr. Moss, Mr. Willson and Mr. Williams, the estate agent. It was proposed that the boundary of the red plot should be 50 feet at the front and at the rear, Mr. Willson pointed out that this would cut off the drive-way entrance and cut across a concrete path which turned off the drive-way to the north-east and which led to Wilmer Cottage, and he said he would not buy unless this part, and the bottom end of the drive-way, was included. In fact it would also have run through a garden shed which was there. Mr. Williams then decided to increase the boundary by five feet to include the pathway, but so that the frontage to Shilton Road was to remain at 50 feet. There would therefore be a kink from what has been called the apex point to Shilton Road, which he measured as 16 feet. Mr. Williams then proceeded to peg out this boundary with seven pegs. From the evidence of Mr. and Mrs. Moss I have no doubt that seven pegs were then put in by Mr. Williams, showing the boundary, one of 50 feet on the frontage and one of 55 feet at the rear. In between there were put in five stakes. One was put in a flower border which is some three feet north of the pathway, the second was put in the border about halfway up it, the fourth was put near a wall and air-raid shelter, opposite a plum tree. The fifth was put in the right side and just behind the garden shed which I have mentioned. The boundary was therefore not a straight line but had a kink in it.
For the contract of September 22, 1964, Mr. Williams prepared a plan, and there is clearly shown on it the kink, and a dimension of 230 feet on the north-west side, which he said was the total footage of the two sides. In the conveyance of October 8, 1964, the parcels are these (and I read from the conveyance):
"all that piece of land situate at Shilton Road Carterton in the parish of Black Bourton in the County of Oxford and having a frontage of 50 feet or thereabouts to Shilton Road a depth on the north-west side of 230 feet or thereabouts and a width at the rear of 55 feet or thereabouts together with the bungalow and premises erected thereon and known as Rock Poultry Farm as the same is for the purpose of identification only delineated and edged pink on the plan annexed hereto",
and the plan annexed shows the north-west boundary as a straight line. There is some mystery as to this plan, since all witnesses agree that the though that also showed a straight boundary line on the north-west. The larger plan has never been discovered and has not been explained, and the original conveyance which is before me does not look as if it has been tampered with.
Conclusions: I have no doubt that on the evidence before me (a) the north-west boundary of the red plot was not to be a straight line; (b) that it was to include the concrete path and the end of the driveway; (c) the dimension of 230 feet, although shown as one dimension in fact, included the two sides of the kink; and (d) that the boundary was clearly marked by pegs and agreed by all parties as being the boundary.
The law: It is trite law to say that extrinsic evidence cannot be given to contradict a written document; equally, a contract is superseded by the conveyance, so that I am not entitled to look at the contract to construe the conveyance, or the contract plan, and I disregard it. It was, however, agreed that if the parcels are vague and the plan is for identification purposes only, the court can take into account the surrounding circumstances. I heard a great deal of argument as to what surrounding circumstances consisted of, but whatever the ambit of that phrase, I am more than satisfied that where the parcels are approximate and the plan is for identification only, the court can look at, and accept, a boundary as marked and agreed by the parties. This is confirmed especially by the unreported Court of Appeal decision in Webb v. Nightingale, March 8, 1957, C.A.; Bar Library Transcript No. 84. This case clearly shows that a boundary marked out and agreed supersedes a plan which is for identification only. I have been provided with a transcript of the judgment. Denning L.J. said:
"It is now proved in evidence that on Sunday, January 24, there was a meeting on the site between Mr. Struckett, the vendors' surveyor, and Mr. Nightingale and his surveyor. Mr. Struckett went there to see where the boundary passed through a pond on the eastern side. But at that very meeting he also pointed out that the south-eastern boundary of Mr. Nightingale's land was where the white peg was, and the northeastern boundary was where a post and wire fence was. On January 29, there was a meeting again between the same parties, at which they agreed the places where some tongues of land were to be taken out of the sale. Then, after that had been done, the contracts of sale were executed in February of 1954. So at the time of the contract the white peg was in position showing the south-eastern corner. We now know that if you were to go solely by plan P.1, it would be in a wrong place, but nevertheless it was the place which had been pointed out and agreed before the contract was signed. It seems to me that thereafter the white peg cannot be said to be in the wrong place. It was adopted by vendor and purchaser as the right place. This was followed up by a visit in the middle of February by the vendors' surveyors with the intention of staking out the boundary on the ground of the zigzag line. They went over the land and actually, where the white peg was, put in a tall stake; and they put in tall stakes along this common boundary with white tops to show what the boundary was. So in the middle of February there was on the land a physical state of affairs which would enable people to see where this common boundary was."
Later Denning L.J. said:
"It seems to me that the line of while stakes with the white peg at the south-east corner and the post and wire fence at the northeast corner, were physical features on the land showing what was being sold. 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 anyone looking at the land at that date of the conveyance could have seen perfectly well what was being sold."
And Romer L.J. said:
"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."
And later Parker L.J. said:
"The plan itself attached to the conveyance, though taken from the ordnance survey, is on a very small scale - so small that I think it was agreed between the experts that it was impossible to arrive by scaling at any measurement with any great degree of accuracy. The plan showed measurements, and, in particular, a measurement of 938 feet along the eastern boundary. In those circumstances it seems to me clear that extraneous evidence is admissible to determine what the parties had been negotiating about and, in particular, between what points the measurement of 938 feet on that plan was taken."
On this first question I have no hesitation in coming to the conclusion that by the conveyance of October 8, 1964, Mr. Moss conveyed to Mr. and Mrs. Willson the orange land. It follows that Mr. Moss did not own this land when he came to sell the yellow land to Colemans. This brings mc to the second question: Did Mr. Moss purport to convey the orange land to Colemans by the conveyance of March 29, 1966? Both the plans on the contract and on the conveyance in this case show the south-west boundary of the yellow land as a straight line, and, again, in the conveyance the plan is expressed to be for identification purposes only, and the parcels are even more vague, for they are in these terms (and I read from the conveyance):
"all that piece of land situate on the east side of Shilton Road Carterton in the County of Oxford and having a frontage of 165 feet or thereabouts thereto a depth on the north side of 260 feet or thereabouts and on the south side of 230 feet or thereabouts as the same is for the purpose of identification only delineated and edged pink on the plan annexed hereto."
On this question there is a violent conflict of evidence. Mr. Crowley and Mr. Forde, who were two of the three directors of Colemans, swore that there were no pegs on the site when they went there. Unfortunately they instructed a Mr. Knatt to prepare a plan (which has been called plan 'C') and this plan shows the boundary missing the garden shed and with a kink in it. Mr. and Mrs. Moss, and Mr. and Mrs. Timms gave evidence that in early 1966 all the pegs except one were in place and clearly visible.
The centre of the controversy surrounds a meeting on the site on January 3, 1966, when there were present Mr. Knatt, Mr. Forde and Mr. Moss. It was as a result of that meeting that plan 'C' was produced by Mr. Knatt. I have no doubt that Mr. Moss was telling the truth when he said that he showed Mr. Knatt where the pegs were. I also accept Mrs. Moss's evidence that Mr. Forde knew all along where the boundaries were, and that she showed the pegs to him late in 1965. I found the evidence of Mr. Knatt unsatisfactory and where the evidence of Mr. Crowley and Mr. Forde conflicts with Mr. and Mrs. Moss's evidence I have no hesitation in accepting the latter. It happened the Colemans were allowed on the site before the contract was signed, so that at the date of the conveyance it may well be that some, though not all, of the pegs had been bulldozed in, but prior to February, 1966, I am satisfied, first, that the southern boundary of the plot being sold to Colemans was properly marked out by pegs; secondly, that Colemans knew where the pegs were and accepted them as the boundary, and, thirdly, that Colemans knew and accepted that the border had a kink in it. The fact that the boundary was not so clearly marked at the date of the contract and conveyance does not, in my judgment, alter the position. These facts are surrounding circumstances which I think this court can take into account.
It follows that by the conveyance of March 29, 1966, Mr. Moss did not purport to convey to Colemans the orange land and did not enter. therefore, into any covenants for title in respect thereof with Colemans, and the defendants, being successors in title to Colemans, can be in no better position. In those circumstances I do not have to consider the third question.
I therefore conclude that the plaintiffs succeed against the defendants, and the defendants fail in their action against the third party.
ORDER
Order accordingly.
Defendants to pay costs of action and counterclaim and of third party proceedings.
Ref: [1971] 1 WLR 635