‘Location, location, location’ requires ‘preparation, preparation, preparation’: Evidence in boundary disputes and claims for adverse possession
14th February 2018
Those who practise in the field of boundary disputes and adverse possession will appreciate that the law in this area is fairly well settled, at least until the Property Boundaries (Resolution of Disputes) Bill becomes law, if indeed it ever does become law. The key to success in these cases will be the evidence and so it is helpful to review the principles relating to this evidence and most useful sources.
The role of evidence in boundary disputes
Extrinsic evidence is frequently required in order to determine boundary disputes. However, it is only in cases where there is ambiguity in the conveyance that other evidence becomes relevant at all and then it is relevant as an aid to construction. As Lord Hoffman noted in Alan Wibberley Building Ltd v Insley  1 WLR 894, at page 896:
“The parcels may refer to a plan attached to the conveyance, but this is usually said to be for the purposes of identification only. It cannot therefore be relied upon as delineating the precise boundaries and in any case the scale is often so small and the lines marking the boundaries so thick as to be useless for any purpose except general identification. It follows that if it becomes necessary to establish the exact boundary, the deeds will almost invariably have to be supplemented by such inferences as may be drawn from topographical features which existed, or may be supposed to have existed, when the conveyances were executed.”
More recently the position was considered by Mummery L.J. in Pennock & Anor v Hodgson  EWCA Civ 873 at paragraph 12:
“Looking at evidence of the actual and known physical condition of the relevant land at the date of the conveyance and having the attached plan in your hand on the spot when you do this are permitted as an exercise in construing the conveyance against the background of its surrounding circumstances. They include knowledge of the objective facts reasonably available to the parties at the relevant date. Although, in a sense, that approach takes the court outside the terms of the conveyance, it is part and parcel of the process of contextual construction. The rejection of extrinsic evidence which contradicts the clear terms of a conveyance is consistent with this approach: Partridge v Lawrence  EWCA Civ 1121;  1 P.&C.R. 176 at 187; cf Beale v Harvey  EWCA Civ 1883;  2P.&C.R. 318 where the court related the conveyance plan to the features on the ground and concluded that, on the facts of that case, the dominant description of the boundary of the property conveyed was red edging in a single straight line on the plan; and Horn v Phillips  EWCA Civ 1877 at paragraphs 9 to 13 where extrinsic evidence was not admissible to contradict the transfer with an annexed plan, which clearly showed the boundary as a straight line and even contained a precise measurement of distance.”
In Cameron v Boggiano  EWCA Civ 157, an appeal against a decision by a judge that the defining plan was sufficiently clear to render topographical features inadmissible succeeded. Deficiencies in the plan included the size, lack of measurements and area size, the thickness of the black lines drawn on it, the poor colouring and the fact that it was based upon an ordnance survey map which did not fix the precise boundaries. In these circumstances, a straight line on the map could not be considered reliable.
The problems with plans
A measured plan should be one of the first steps in any boundary dispute. It is extraordinary how much unnecessary costs are incurred by problems with plans, whether those attached to the conveyance or adduced as evidence.
In Durden v Aston  EWCA Civ 157 the Court of Appeal held that the judge had erred in being particularly influenced by a Land Registry plan which delineated a physically impossible arrangement. Looking at the plan without considering the position on the ground rendered the plan meaningless. Accordingly, the conclusion of the judge conflicted with the preponderance of the evidence and was set aside.
In all cases it is vital that the Court is assisted by a proper plan and that the parties in a dispute co-operate, at least the extent of agreeing what the current plan is, so far possible.
A photograph speaks a thousand words! That is particularly true of cases involving adverse possession. There are a number of different sources of photographs: aerial, family and historic. Aerial photographs can be of particular assistance in identifying the source of a particular feature, such as a tree or hedge, at any particular time. They are less useful regarding detail, such as the size of the particular feature, but, a comparison between the photograph and the current marker can disclose the full position. A client will rarely be so well prepared as to have historic photographs taken of the boundary which is in dispute because the dispute could not be foreseen. However, that client may have family albums containing photographs taken in the garden to mark events such as birthdays, marriages and other important events which contain useful material which can be traced to a date, by reference to the event. Estate agents’ particulars may also contain useful photographic evidence.
These disputes can also be assisted by evidence obtained by resources such as Google Earth and Google Street View. Certain types of dispute such as a case about whether parking a car requires access over land belonging to another can also benefit from recordings of the car being parked without requiring such access.
More traditional sources can also provide valuable material. English Heritage and local historic societies and books may contain useful material and even local newspapers could have evidence in cases where a dispute arises in relation to a well-known building in the community.
Oral evidence in a boundary dispute will invariably be given by the client and the neighbour with whom the dispute exists. Occasionally, relevant evidence can be obtained by former occupants of the property (for example, of the date a fence was erected or a hedge was planted – the latter can also be the subject of expert evidence) or from those who have delivered to the property, such as the persons who delivers the post or milk (a rarity now).
The importance of oral evidence cannot be underestimated. In Paul Zieleniewski v Charles Philip Scheyd, Lynn Mary Pryor  EWCA Civ 247 the Court of Appeal noted that claims of substantial interference had been successfully pursued for many years by the deployment of purely oral, non-expert evidence. The absence of photographic, video or expert evidence was not relevant and the judge erred in failing to address the oral evidence.
However, it must equally be noted that it is useful to test that evidence against documentary evidence and to obtain all such evidence in advance of trial in order to avoid a position such as that which occurred in Mayers & Anr v Underwood & Anr  EWCA Civ In that case the judge was impressed by the evidence of a relative of the family which formerly owned land with regard to the position of an elm tree. Following the trial, the other party obtained photographic evidence which purported to show that no elm tree had ever been located on or near the boundary. As it was argued that this photographic evidence could not show a stump the matter was remitted for a retrial.
Evidence as to the conduct of the parties should focus upon the time of the conveyance. In Norman v Sparling  EWCA Civ 1152 the Court of Appeal considered that action by way of putting posts upon the bank and failing to object to plants being planted the other side of the bank shortly after the conveyance was highly probative evidence in circumstances where the deed was unclear.
Experts and site visits
The best oral evidence is often that of the expert, so long as it is the right expert! An expert needs to be able to produce a report which complies with the basic requirements; a report which does not comply with CPR Part 35 is likely be given little or no weight. The expert needs to understand that the expert is a witness and not the judge. S/he is not being asked to reach decisions regarding the situation of the boundary, just to give an opinion on the relevant issues. In William Patrick Hatton, Margaret Mary Hatton v Peter Connew, Iris Connew  EWCA Civ 1560 the judge heard from the surveyors during a site visit and not examination in chief and cross examination. The appeal was allowed by the Court of Appeal on the basis that the judge’s treatment of the witness had been irregular.
In Hatton criticism was also made of the approach of the judge during the site visit as no proper note had been made and the site visit was treated as a substitute for cross examination. Those criticisms are important, but, a site visit can be crucial in most cases. It enables those attending to have a far more complete understanding of the site and potentially to identify other inquiries which should be made.
Boundary possession claims and adverse possession cases require detailed preparation and evidence gathering in order to avoid the many pitfalls which can occur and the increased costs risks which accompany such cases. So, ‘location, location, location’ needs to be accompanied by ‘preparation, preparation, preparation’.