by CARL CALVERT of Calvert Consulting
“HEY, THAT’S ON MY LAND!” “No, it’s not: I am only replacing that old hedge with a proper fence.”
And so, with both parties believing that they are in the right a boundary dispute is about to take off.
Of course, the ingredients may be a little different but the circumstances tend to be very similar. In any event there is a belief by one party at least – the other may be just ‘pushing his or her luck’ – that the boundary is well defined, that the definition on the ground is in accord with what they bought and have occupied for many years and that either there is no contrary evidence, or if there is, then it is inferior to their own evidence.
So, solicitor, friend or land surveyor? A solicitor knows the law but is often not in a position to understand maps and what the lines on the map represent. As a judge told me, “Mr Calvert, I can scale a measurement on the plan but I need you to tell me what the line represents.”
A friend may be able to help but can be subjective and not tell his friend what he does not want to hear. The Chartered land surveyor has to be objective under Royal Institution of Chartered Surveyors’ rules, and if it comes to preparing anything for court, then Part 36 of CPR and practice directions.
The following three Court of Appeal cases show that understanding the ground and its portrayal are part of the process of obtaining a solution in law.
The first point is the reliability of the topographic, that is Ordnance Survey mapping at that time. In Horn & Anor v Phillips & Anor (2003)EWCA Civ1877, Lord Justice Jacobs said of the conveyance plan: “This document is intended to transfer title to land. It gives a precise measurement – I pass over ‘or thereabouts’, which everybody agreed did not make much difference. To my mind the clear intention is to indicate exactly where that line is supposed to be. So relevantly, this map is not ambiguous. True it is that other parts of the map may be not very satisfactory because the Ordinance Survey is not very satisfactory, but in its relevant respect one can see exactly where the beginning and the end of the line is, and if you go to the land you can see exactly where they are.”
The second point refers to what was on the ground, Cook v J D Wetherspoon plc (2006) EWCA Civ 330, is the case in point. Sir Martin Nourse, in dismissing the appeal stated that; “(the Defendant) relies on these features and also on the following passage in the report of the single joint expert:
The physical and logical end of the Wheatsheaf site is defined by the northern edge of the concrete apron running around the car park which I believe is represented by the dashed line on the Ordnance Survey plan, albeit that this line is drawn in slightly the wrong position due to inaccuracies in the Ordnance Survey mapping system which they acknowledge’.”
The final point refers to a presumption in law, that of hedge and ditch. In Alan Wibberly Building Ltd v Insley (1997) CCRTF 96/0813/C, Lord Justice Ward states:
“This is a boundary dispute. To hear those words, ‘a boundary dispute’, is to fill a judge even of the most stalwart and amiable disposition with deep foreboding since disputes between neighbours tend always to compel, as this one did, some unreasonable and extravagant display of unneighbourly behaviour which profits no one but the lawyers. Fortunately this appeal is different. Ably argued as it has been by both counsel, it crisply raises a point of law of some importance, especially in rural England and Wales.
That question, for the moment quite broadly stated, is this: where adjoining fields are separated by a hedge and a ditch, who owns the ditch?”
So there we have it. Maps only show what the surveyor chose to show what existed on the ground at the time of survey according to his or her skill and the rules under which they operated. The Chartered Land Surveyor is merely a translator of the picture (the map) to the word people (the lawyers) with an understanding of their language.