Significance of Boundary agreements
The parties, neighbours, disputed the boundary between their gardens. In a conveyance of land where the plan is stated to be for identification purposes only, the effect of those words: ‘Seems . . 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.’ The words ‘for the purpose of identification only more particularly delineated on the plan’ were a form of words that might ‘appear to the literalist to amalgamate conventional forms of expression and tend towards ‘a mutually stultifying’ conclusion. Nevertheless: ‘Certainly I do not think that they give the plan any predominance over the parcels.’
‘Now a boundary agreement may constitute a contract to convey land. The parties may agree that in return for a concession by A in one place, straightening the line of division, B will make a concession in another place; and the agreement may thus be one for the conveyance of land. But there is another type of boundary agreement. This does no more than identify on the ground what the documents describe in words or delineate on plans. Nothing is transferred, at any rate consciously; the agreement is to identify and not to convey. In such a case, I do not see how the agreement can be said to constitute a contract to convey land.
In general, I think that a boundary agreement will be presumed to fall into this latter category. ‘
Megarry J discussed the effect of the earlier oral settlement of the parties’ boundary dispute: ‘I must too bear in mind that a boundary agreement is in its nature an act of peace, quieting strife and averting litigation and so is to be favoured in the law. I also bear in mind that many boundary agreements are of the most informal nature.’ and ‘The law ought not to encourage people to be aggressive about their rights by a fear that in granting any indulgence they will be treated as having yielded up their rights. A man who puts in garden canes short of the point that he considers to be the true, although unmarked boundary, in order to serve as a warning to himself and others against any arguable trespass onto his neighbour’s land ought not to be treated as having thereby represented that the canes show the true boundary.’
And: ‘Now a boundary agreement may constitute a contract to convey land. The parties may agree that in return for a concession by A in one place, straightening the line of division, B will make a concession in another place; and the agreement may thus be one for the conveyance of land. But there is another type of boundary agreement. This does no more than identify on the ground what the documents describe in words or delineate on plans. Nothing is transferred, at any rate consciously; the agreement is to identify and not to convey. In such a case, I do not see how the agreement can be said to constitute a contract to convey land . . In general, I think that a boundary agreement will be presumed to fall into this latter category. In short, in my judgment, a boundary agreement is presumed not to convey land: the presumption may be rebutted, but unless it is, the agreement is not registerable; and to point to circumstances of doubt or uncertainty is not to rebut the presumption.’
Megarry J considered how parcels clauses were to be construed: ‘in the construction of the parcels clause of a conveyance and the ascertainment of a boundary the court is under strong pressure to produce a decisive result. The prime function of a conveyance is to convey. As to any particular parcel of land, either the conveyance conveys it, or it does not; the boundary between what is conveyed and what is not conveyed must therefore be proclaimed. The court cannot simply say that the boundaries are uncertain, and leave the plot conveyed fuzzy at the edges, as it were. Yet modern conveyances are all too often indefinite or contradictory in their parcels. In such circumstances, to reject any evidence afforded by what the common vendor has done in subsequent conveyances seems to me to require justification by some convincing ground of judicial policy; and I have heard none.’
Megarry J
[1969] 20 P and CR 909
England and Wales
Citing:
Applied – Watcham v Attorney-General of the East Africa Protectorate PC 1919
The Watchams held land along the bank of the Nairobi River. It had been conveyed to them by the Crown by a certificate under the East African Land Regulations. The certificate gave the area transferred as ’66 3/4 acres, or thereabouts’, but included . .
Cited by:
Cited – Alan Wibberley Building Ltd v Insley CA 12-Nov-1997
Where adjoining fields are separated by a hedge and a ditch, who owns the ditch?
Held: The old presumption as to the location of a boundary based on the layout of hedges and ditches is irrelevant where the conveyance was by reference to an OS . .
Cited – Stephenson and Another v Johnson and Another CA 12-Jul-2000
There had been a dispute as to the correct boundary between two properties in North Yorkshire. The land had been in common ownership until 1973. The 1973 conveyance showed the boundary in a position which the claimants said was determinative. The . .
Cited – Druce v Druce CA 11-Feb-2003
The parties disputed the extent of land conveyed. The conveyance described the plan as for identification purposes only but the decsription went on to say that it was ‘more particularly delineated on’.
Held: In the circumstances the plan would . .
Explained – Wigginton and Milner Ltd v Winster Engineering Ltd CA 7-Dec-1977
Various conveyances had dealt with land. By mistake, certain land was excluded from the plans.
Held: The plan had been included ‘for identification purposes only’, but that did not mean that the plan was to be disregarded. It could not . .
Followed – Burns and Burns v Morton CA 27-May-1999
The parties disputed the line of the boundary between their neighbouring properties.
Held: The appeal failed: ‘the conveyance in respect of each property refers to the wall between the properties as being a division or dividing wall. That . .
Cited – Flack v Lanzante CA 28-Aug-2002
Renewed application for leave to appeal. Boundary dispute. Boundary agreement shown – leave refused. . .
Cited – Scarfe v Adams CA 1981
Transfer deeds for a sale of land did not define the boundary but referred to a plan which was held to be too small to show a precise boundary. The only other element of the parcels clause was that it was land adjoining Pyle Manor and that it was . .
Cited – Ali v Lane and Another CA 21-Nov-2006
The parties disputed the boundary between their neighbouring plots of land.
Held: In the modern law the conveyance (parchment or not) is undoubtedly the starting point. Where information contained in the conveyance is unclear or ambiguous, it . .
Cited – Hawkes v Howe CA 29-Jul-2002
The parties were neighbours. One asserted that the other had trespassed in a building by 2.5 inches. The defendant appealed an award of damages. A garage had been built over the boundary by a previous occupier but by agreement. The new owner . .
Cited – Piper and Another v Wakeford and Another CA 17-Dec-2008
The parties disputed the boundary between their land.
Held: The judge had been entitled to rely on the evidence he had accepted, and had been entitled to find on the factual basis asserted. . .
Cited – Pennock and Another v Hodgson CA 27-Jul-2010
In a boundary dispute, the judge had found a boundary, locating it by reference to physical features not mentioned in the unambigous conveyance.
Held: The judge had reiterated but not relied upon the statement as to the subjective views of the . .
Cited – ACCO Properties Ltd v Severn and Another ChD 1-Apr-2011
The parties disputed the boundary between their respective plots.
Held: Simon Barker QC J set out (and then applied) the principles for resolving boundary lines: ‘1 Where, as in this case, the property in question is registered land, the file . .
Cited – Bradley and Another v Heslin and Another ChD 9-Oct-2014
The parties were neighbours. One had a right of way over the other’s land. A gate existed over it. B wished to close the gate for security, but H wished it open in order to be able to drive through it without having to get out of his car, and so he . .
Lists of cited by and citing cases may be incomplete.
Land
Leading Case
Updated: 01 November 2021; Ref: scu.183680