Case No: CCRTF/B2/2001/2157	
Neutral Citation No. [2002] EWCA Civ 1136
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON
COUNTY COURT
Mr Recorder Hurst
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Monday 29th July 2002
Before :

LORD JUSTICE KEENE
and 
MR JUSTICE SUMNER

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Between :

	HAWKES	Respondent	
	
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HOWE	
Appellant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr. Hawkes was not represented and appeared in person
Timothy Morshead (instructed by Messrs Seddons of London) for the Appellant

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Judgment
As Approved by the Court

Crown Copyright ©

Mr Justice Sumner: 
1.	This is an appeal against a reserved judgment of Mr Recorder Hurst QC, the Senior Costs Judge, of 21 September 1991 given at the Central London County Court.  The learned Recorder held that the claimant, Mr Henry Hawkes, now the respondent, had succeeded in his claim for trespass against the respondent, Mr Robert Howe, now the appellant.  He awarded him total damages of £2904.75.
Background
2.	The parties are next door neighbours at 39 and 41 Priory Road, Bedford Park, in West London.  No 39 is a semi-detached property.  No 41 is a detached property.  They are Grade II listed buildings designed by Norman Shaw.  The dispute concerns a strip of land which on the learned Recorder’s findings measures only 2 ½ inches wide and is the length of their garages.  The dispute occupied the Central London County Court for 3 days.  The appellant was given permission to appeal against what are now grounds 1 and 2 of the grounds of appeal.  He was refused permission to appeal in respect of grounds 3 and 4.  We heard full argument from Mr Morshead for the appellant on all the grounds of appeal.
3.	The respondent Mr Hawkes has been the owner of no. 39 since 1956.  He acted in person in the Central London County Court and before us.  He has not addressed us but referred us to his lengthy skeleton argument all of which I have considered.  The appellant Mr Howe was also represented by Mr Morshead in the County Court.  The appellant purchased no. 41 in 1995 applying shortly afterward for planning permission to demolish his existing garage and replace it.  The respondent’s case is that in erecting the new garage which abuts his garage and the boundary between the 2 properties, the appellant encroached onto his land.  The appellant’s case is that he followed the line of his original garage.  He did not trespass.  He raised other defences.  Separately the learned Recorder held that in the course of building the garage the appellant undercut the respondent’s garage, for which he awarded damages in the sum of £904.75.  There is no appeal against that finding nor the award of damages.
4.	At the heart of the dispute was the question of where the true boundary lay between the 2 properties.  If the learned Recorder held that the appellant’s garage did rest in part on the respondent’s land, the appellant relied on 2 further defences.  Firstly he said that the boundary was the subject of an agreement between the respondent and the appellant’s predecessor in title which determined that the boundary was beyond the edge of his new garage.  Finally the appellant claimed that, if his new garage did go on to the respondent’s land, he was not committing a trespass.  He followed the building line of the garage which had been there before for a period in excess of 12 years.  Accordingly he had acquired title to the land represented by the extent that his new garage went over the boundary.  This was by right of adverse possession pursuant to ss. 15, 17, and Schedule 1 of the Limitation Act 1980.
5.	In order to determine these disputes the learned Recorder had a substantial bundle of documents running to some 250 pages.  He heard evidence from the parties, 2 surveyors Mr Simpson and Mr French, an architect Mr West, and a witness Mr Gumbs.  His judgment is nearly 40 pages.
6.	It is most unfortunate that a dispute of this nature representing such a small sliver of land should already have lasted nearly 6 years, taken 4 days in court, incurred substantial costs, and no doubt brought strain and upset to the parties.  It has now become a matter of deep concern to both of them.  I must now endeavour to resolve a dispute that is quite complex to anyone unfamiliar with the difficulties presented by boundary disputes.
The Proceedings
7.	It was on 10 July 1996 that the respondent started proceedings.  He claimed that the appellant had trespassed onto his land in building his new garage.  He obtained an injunction against the appellant on an application without notice.  That injunction was subsequently discharged at a further hearing, with a costs order against the respondent.
8.	By his Re-amended Particulars of Claim the respondent claimed in trespass and nuisance.  He sought an order for possession of his land, the removal of the wall that trespassed on to his land, and the cost of reinstating the foundations to his own asbestos and timber framed garage.
9.	By his Amended Defence and Counter claim, the appellant said that the true boundary ran some 2 inches beyond the wall of his new garage.  There had therefore been no trespass.  Alternatively he claimed adverse possession in that the new garage replaced and was no wider than an existing garage which had been in the possession of the appellant and his predecessor in title since before 1970.  The damage to the foundation of the respondent’s garage was denied.  There was a counter-claim for a declaration in relation to the true position of the boundary.
10.	By a Re-amended Defence and Counter-claim, a copy of which I have not seen, the appellant raised a further defence as set out in paragraph 5 of the judgment.  It was that there had been an agreement between the appellant’s predecessor in title and the respondent or his predecessor in title that the boundary between the 2 properties was the south side of the fence running west from Priory Avenue.
11.	The final matter raised on this appeal is not readily apparent from the pleadings; it relates to damages.  In the course of interlocutory applications, the appellant says the respondent restricted his claim for damages to nominal damages plus £904.75, the cost of repairing the undercutting of the foundations of his garage.  He therefore argues that it was therefore not open to the learned Recorder to award the respondent any greater sum.  Furthermore there was no evidence to support his award of £2,000 by way of general damages.  Given the length, expense, and nature of this claim, even if there could have been an award of more than nominal general damages, it would not now be right to re-open this issue.  It would be unfair to the appellant and disproportionate.
The Judgment
12.	The learned Recorder, having set out the parties’ rival contentions, considered the title documents.  He noted rightly that the only one with measurements was a lease of 1932 to the respondent’s predecessor in title.
13.	He next summarised the respondent’s case.  He said he owned the fence between no.s 39 and 41 in the front which ran between a brick pillar by the road up to their garages.  He had paid Mr Gumbs to replace it in 1969.  The new fence copied what had been there before and the fence posts went in the same holes.  It went to the centre of the brick pillar.
14.	The respondent’s property is to the south side of the true boundary, the appellant’s to the north.  The respondent claimed that the true boundary went from the mid point of a pillar between the properties and by the road to a point midway between their 2 houses, or 2.1 metres from each.  He referred the learned Recorder to a series of photographs, some of which we have seen.  He said that the original garage at no. 41 was 6 inches from his; he had allowed the fascia to abut his garage but the gap of 6 inches was shown by a photograph of a timber resting on the now demolished garage and covering the gap.  The gap was now between 1 inch at the front and 2 inches at the back.  There was a trespass therefore of between 4 and 5 inches in the building of the new garage.
15.	The appellant’s case was that he had not moved the south wall of the garage from the position of the garage formerly there.  He had employed an architect Mr West to design the new garage.  It was narrower inside by the width of the brick walls than the original corrugated one.
16.	The learned Recorder then went into the planning application in some detail.  The reason is not clear.  There were no measurements on the architect’s plans however helpful that might have been, and no other assistance is to be found.
17.	He next noted the measurements made by each of the surveyors.  It was Mr French for the respondent who recorded the gap of 4.2 metres between the 2 houses.  He found the appellant’s new garage came over the midway point (which he said was the boundary) by 65 millimetres or 2 ½ inches.  Mr Simpson for the appellant made a number of measurements.  The learned Recorder found that the most useful one was from the party wall centre line between no.s 37 and 39 (they are semi-detached) to the north side of the fence between no.s 39 and 41, which came to 34 feet 6 ¾ inches.
18.	In his conclusions the learned Recorder noted that the boundary of no. 39 tapered from 34 feet 6 inches at the front to 33 feet 5 inches at the back over a distance of 101 feet as shown on the lease of 1932.  He rejected a claim that this was likely to be a linear tapering because –
a)	He did not know if the other boundary was straight or also tapered.
b)	The front fence between no. 39 and 41 had been static for some time.
c)	The appellant did not want to move the fence.
19.	He referred to the rebuttable presumption that an owner places posts and rails on his land with palings on his neighbour’s side.  He held this was rebutted.  The fence between no.s 35 and 37 was on the land of no. 35 who had the fence panels facing him.  The same was true of no.s 37 and 39.  Accordingly a fence owner in that part of the road had the good side facing his property.  This is what happened when Mr Gumbs replaced the fence in 1969.  This was further shown by the appellant’s predecessor who regarded the respondent as owning the rear fence and contributed to the cost of its replacement as he wished it to be 6 feet high, not 4 feet as the respondent proposed.
20.	He considered next whether there had been an agreement between the respondent and the appellant’s predecessor in title about where the boundary was.  The appellant relied on a flowerbed up to the fence on the side of no. 41 with no complaint from the respondent.  The existence of an agreement and any adverse inference from the flower bed was rejected.
21.	The reasons for the rejection were –
a)	The respondent considered the fence was his.
b)	He went on to no. 41 to survey the fence without obtaining permission or receiving an objection.
c)	Growing plants up to the fence was not sufficient to establish an agreement.  To permit such planting was no more than reasonable.
22.	He found that the boundary ran from the mid-point of the pillar.  The fence at the back and rear belonged to the respondent.  The gap behind the former façade of the garage of no. 41 was more than the present gap of 1 ½ to 2 inches.  The appellant’s garage encroached on to the land of the respondent to the extent of 2 ½ inches.  The correct remedy was damages not the destruction of the appellant’s garage wall.  There was under-cutting of the respondent’s foundations.  He awarded the sum claimed for under-cutting of £904.75 and later, after further argument, £2,000 for general damages.
Permission to Appeal
23.	The learned Recorder gave permission to appeal on this issue of where the true boundary lay.  He refused permission in respect of Mr Morshead’s points on adverse possession and damages.  Having heard his arguments we grant permission on both topics.  I shall set out my judgment on both topics in due course.
The True Boundary
24.	The first point taken by Mr Morshead relates to the learned Recorder’s decision about where the true boundary lay.  He accepted that the only relevant document concerning the boundary is the 1932 lease to the respondent’s predecessor in title.  There his house is described in the following terms.
“They the Lessors do by these presents grant and lease unto the lessee all that piece or parcel of land situate on the north-west side of Priory Road Bedford Park in the Parish of Ealing in the County of Middlesex TOGETHER with the messuage or tenement and motor car house erected and built and now standing and being thereupon and known as Number 39 priory Road aforesaid which said premises are with the dimensions and abuttals thereof more particularly delineated on the plan thereof drawn hereon and are thereon coloured red and green.”
25.	The plan has only 3 relevant measurements.  They are a frontage of 34’ 6”, a depth of 101’, and a rear width of 33’ 6”.  There is no indication of where these measurements are taken.  The only additional evidence other than present measurements was that of Mr Gumbs.  He replaced the fence between the appellant’s and respondent’s properties between the frontage and the garage in 1969.  His evidence that he used the same sockets for the fence posts and put the fence boards on the respondent’s side of the posts as they had been before.  This was accepted.
26.	Mr Morshead focuses firstly on the finding of the learned Recorder that the true boundary was midway between the 2 properties.  It fails he says to take into account the narrowing of the respondent’s plot.  It ignores a presumption that where a fence marks a boundary, the fence is owned by the landowner on whose side of the palings the fence posts stand.  He failed to consider the fence at the rear of the property and what inferences could be drawn.  Finally he attached too much weight to the respondent’s maintenance of the front fence.  I consider each of these submissions.
The Respondent’s Tapering Boundary
27.	It is evident that the respondent’s northern boundary tapered by 12 inches over it length of 101 feet.  It follows that if this were a linear tapering that would be the equivalent of about one inch for every 8 ½ feet.  The learned Recorder recognised this, (para. 65).  He discounted it for three reasons.
28.	Firstly he rightly recognised that it was necessary to know whether the other corresponding boundary tapered or was straight.  As he had no evidence on that point he was right in my judgment not to take the tapering effect into account.  I do not share his further reasons for ignoring the taper based on the static nature of the front fence for a number of years nor on the appellant’s wishes.  That could be a persistence in error rather than a safe indication of the site of the true boundary.  What the appellant wanted was not relevant to a determination of where the boundary lay.  A further consideration not mentioned was that the taper might not be uniform along the full length.
29.	It is only if there is a finding that the taper is linear does Mr Morshead's argument assist him.  It is possible that this is so, but faced with measurement of only one boundary, the learned Recorder was not wrong to reach the conclusion that he did.  I reject Mr Morshead’s submissions to the contrary.
The Fencing Presumption
30.	The next point taken by Mr Morshead relates to the ownership of the front fence between no.s 39 and 41.  He says that the learned Recorder rightly recognised the presumption which I have set out.  However he was wrong to conclude that the presumption was rebutted.  The evidence on which he relied was either insufficient or flawed.  He should have held that the fence was owned by the appellant.  Given the final conclusion about the extent of the appellant’s trespass, 2 ½ inches, this would have made a crucial difference.
31.	The learned Recorder cited Halsbury’s Laws of England Fourth Edition to which he had been referred in support of the presumption, para.68.  I repeat the citation with an introductory sentence.
“All the presumptions recognised and obtaining in the case of boundaries are rebuttable, and not irrebuttable or conclusive presumptions, that is to say, evidence to rebut the presumptions is always admissible, but, until it is produced, the presumptions necessarily apply.
Fences.  In the case of wooden fences, it is likely to be inferred that, in the absence of freeboard, the owner of land will use his land to the fullest extent so that the fence will be deemed to belong to the person on whose side the rails and posts are placed, the palings being placed on his neighbour’s side, but where there is a dispute it would be necessary to show acts of ownership; that is, an owner may establish acts of ownership by himself to show that the fence is his or acts of ownership by his neighbour to show that the fence is the latter’s responsibility.  Alternatively, the owners may have agreed to share responsibility.”
32.	His conclusions on this topic were as follows (para. 69):
“Mr Hawkes dealt with this by referring to the photograph at page 328, which shows that the boundary between Nos. 35 and 37.  This shows the new garage, built by Mr Rogers at No. 37, which measures 2.1 meters, and the fence is built on the property of Mr O’Malley at No. 35, and he has the so called “good side”, that is, he sees the fence panels rather than the rails.  The fence on the northern boundary of No. 37 belongs to Mr Rogers.  I have already referred to the correspondence as a result of which he put the fence on his own land.  He has the good side of that fence, Mr Hawkes sees the post and rail.  In addition to the fence between 39 and 41, there is direct evidence from Mr Gumbs that he attached the fencing, so as to give Mr Hawkes the good side, and Mr Hawkes agreed that that was what happened.  There is therefore sufficient evidence to show that the owner of a fence in that part of Priory Avenue may expect to have the “good side” of the fence on his side.”
33.	That passage contains a number of findings about the ownership of boundaries between the properties at no.s 35 and 37, and no.s 37 and 39.  Based on that he considered that the presumption was rebutted.  The difficulty is the basis for those findings.  It was asserted by the respondent that the fence between nos. 35 and 37 was owned by 35, and that the fence between nos. 37 and 39 was owned by 37.  In respect of the first assertion I am not aware of any evidence to support it other than what the respondent said.  In respect of the second fence, the learned Recorder refers to correspondence where the owner of 37 asserted that the fence was on his land.  A letter from the respondent’s solicitor in 1997 to the then owner of no. 37, p.227, suggests that the fence has been incorrectly placed, not that it was owned by the respondent.  I am concerned whether that evidence alone permitted the learned Recorder to find that the presumption in relation to fencing had been rebutted.
34.	The learned Recorder regarded as decisive that in 1969 the respondent replaced his front fence with no. 41 with Mr Gumbs –
 “deliberately putting the good side on Mr Hawkes’ side to give him the benefit of it; by the fact that Mr Hawkes has since that time attached a piece of wood to the brick pier in order to strengthen the fence; and because of the agreement he reached with Mr Scoffield in 1977”.
35.	Mr Scoffield was the previous owner of no.41.  There are 2 letters from him in December 1977 and January 1978 referred to in paras. 18 and 19 of the judgment.  They relate to fencing at the back.  A contribution was obtained from Mr Scoffield because it was held that the respondent agreed to Mr Scoffield’s request that the fence being 6’ not 4’.  I cannot see that the attachment of a small piece of wood as is shown by the photographs is a sufficient indicator of title.  Furthermore the learned Recorder may have been in error about the evidence of Mr Gumbs.  He did not “deliberately” put the good side on the respondent’s side.  He copied what was there already as he noted earlier. (paragraph 17 of the judgment).
36.	That leaves the respondent’s evidence that he owned the fence between nos. 39 and 41.  The only support for this is the agreement with Mr Scoffield about the rear fence, and the respondent’s rebuilding of the front fence with Mr Gumbs.  I have been troubled about the basis for these conclusions.  But I am satisfied that the measurements accepted by the learned Recorder make the position clear, despite the strong arguments of Mr Morshead to the contrary.
37.	He found that the respondent allowed the façade of the appellant’s former garage to abut his garage.  There is now a gap of between 1 ½ and 2 inches between the garages.  The respondent claimed that formerly there was a gap of 6 inches.  That was rejected and the boundary was held to lie midway between the 2 properties such that the encroachment to be 6.5 centimetres or 2 ½ inches.  Mr Morshead traced the origin of that finding.
38.	There were he pointed out only 2 places where that measurement was mentioned.  The first is the finding (in paragraph 50) that the planning permission was for a garage 2.1 metres wide whilst the appellant’s garage was 2.165 metres wide.  Much consideration was given by the learned Recorder to the question of planning permission and the absence of detailed figures, but it has no bearing on the issues he had to decide.  It was not a proper basis for any finding.
39.	The second reference is to the statement of Mr French (at para 55 of the judgment).  He set out a passage in Mr French’s statement where he said (p. 189) –
“I then measured the distance from No. 41 (Mr Howe) flank wall to the edge of his new brick garage wall above ground (excluding foundations) both at the rear of the garage and at the front.  Distances were the same, i.e. 2.165 metres.  This distance, according to my reckoning outlined above, should be half of the total width, i.e. 2.10 metres.
The edge of the new garage at No. 41 (Mr Howe) is therefore over the boundary line by the difference, i.e. 2.165 metres less 2.100 metres = 65mm.
Mr Hawkes also requested that I establish the position of the brick pier on the boundary adjacent to the pavement and its relationship between the corners of No. 39 (Mr Hawkes) and No. 41 (Mr Howe).”
40.	A number of points arise.  Firstly Mr French’s conclusions were based on his consideration of a 1965 Ordnance Survey map and precise measurements he had taken from them, (p.188).  It led him to conclude that the boundary was midway between the two houses.  No one else supported that as a proper basis for his conclusion.  It was plainly wrong as the true basis for all calculations was the 1932 lease.  No one suggested that the Ordnance Survey map could be so used but it was accepted by the learned Recorder apparently as a proper foundation for the conclusion.  The boundary may be midway between the two houses.  But the map was not a basis on which in my judgment the learned Recorder was entitled to rely.
41.	One of the measurements by Mr Simpson for the appellant, was regarded as most helpful.  This was from the party wall mid-line between nos. 37 and 39 to the north side of the fence post between nos. 39 and 41.  This was 34 feet 6.75 inches.  The discrepancy of ¾ inch the learned Recorder explained as –
“the difficulties in defining the exact party wall centre line at one end and the fact that the fence at the northern end may not be perpendicular”.
42.	If the figures on Mr Simpson’s plan, (p.197) are used together with a photograph of the brick pillar between nos. 39 and 41 (at p.272), a number of details emerge.  The pillar is the width of 2 bricks laid end to end.  The mid point of the pillar is on Mr Simpson’s figures 2.75 inches plus 5.3 inches from its edge, that is 8.05 inches.  The line of the fence was inside or on the respondent’s side of the mid-line of the pillar.  If therefore the boundary ran from the mid point of the pillar, the fence and posts were on the respondent’s land.
43.	Mr Simpson measured mid pillar between no.s 39 and 41 and mid pillar between no.s 37 and 39 at 34 feet 6 inches.  By the house the measurement of the northern side of the posts to mid house line was 34 feet 6 ¾ inches.  This sufficiently supports the finding, (para. 74) –
“I find that the boundary runs from the mid point of the brick pillar across the northern face of the fence posts to the garage and that the fence at the front and rear both belong to Mr Hawkes.”
44.	Whilst great care has to be taken in considering the photographs in isolation, the photo at p.272 appears to show the post between nos. 39 and 41 coming up to and not crossing the mid-line of the pillar.  On the basis that Mr Gumbs used the same holes for the posts as those which supported the former fence, there is a further basis for saying that the true boundary follows the line of the northern side of the fence posts, especially given the accepted measurement of 34 feet 6 ¾ inches nearer the houses.
45.	It should therefore not have been too difficult to follow the line of the northern side of the boundary posts though the area occupied by the 2 garages.  There is now a 1 inch gap at the front of the 2 garages, increasing to 2 inches at the back.  Mr Simpson’s plan shows a post close to the front of the garage the width of the boundary post being over the line of the new brick garage (p.197).  Mr French’s plan (p.192) also supports this.  It is visible on photos at p.285, 301, 318, and 319.  If the new garage is to that extent over the line made by the northern face of the post as is implied by the learned Recorder’s findings, that would be another factor in support of his conclusion.
46.	The essential findings were that the boundary ran from the mid-line of the pillar to the mid-line between the 2 houses.  I am not satisfied that the fences between the 2 other properties give a sufficient basis to rebut the presumption relating to the fencing.  But the measurements, the fence being on the south side of the mid-line of the pillar, and its good side now reflecting what was there before 1969 combine in my judgment to support the learned Recorder’s findings.  For my part I consider there was evidence on which those 2 essential findings could be made.  I would therefore dismiss the appeal on that point.
A Boundary Agreement
47.	Mr Morshead submits that in any event there was evidence from which the learned Recorder should have concluded that there was an agreement to be spelled out to the effect that the true boundary was to the south of the fence posts, not to the north.  If the posts are at least 2 ½ inches wide this would be sufficient to establish that there was no trespass.  Such agreements can be quite informal.  He referred to the Court of Appeal decision in Stevenson v Johnson [2000] EW CA Civ where an earlier judgment of Megarry J in Neilson v Poole [1969] 20 P and CR 909 was cited, where he said, at p.919 –
“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.”
Near the end of his judgment, he said:
“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.”
48.	In Stevenson v Johnson Bennett J said at para. 75 –
“In summary, in my judgment, the judge was right to find an agreement between Mr Vane and the defendants.  It is not strictly necessary for a court to have to find an offer and an acceptance.  The course of the parties’ conduct, that is to say, Mr Vane and the defendants, should be looked at and if, on the balance of probabilities, an agreement is established, that is sufficient.  In my judgment, the conduct of Mr Vane and the defendants does establish such an agreement.”
49.	The matters relied upon by Mr Morshead were as follows –
a)	The failure by the respondent to assert ownership of the fence.
b)	The long existence of the fence with its good side facing the respondent.
c)	The fact that the appellant’s predecessor Mr Kerr planted right up to the fence.
d)	The same predecessor added a façade to his garage which abutted the respondent’s garage.
e)	It was not possible for the respondent to make use of the land beyond the fence posts.  He behaved as if he had no interest in it.  With the difference between the old and the new boundary being so small, it is not surprising that neighbours had treated the boundary as being marked by the fence.
f)	The learned Recorder had allowed himself wrongfully to be influenced by the respondent’s assertion that he looked on the fence as his own.
50.	The learned Recorder said in relation to this argument (para. 73 of the judgment) –
“In my view, none of this assists Mr Morshead, Mr Hawkes quite clearly looked upon the fence and therefore the land between the fence posts as his own.  He went onto that land without seeking permission and without raising any objection from others, in order to fix a strengthening piece to the north side of the fence.  The fact that he took no objection to his former next door neighbour growing plants around the fence is not in my view sufficient to establish an agreement.  In about 1969 he and Mr Gumbs replaced the earlier fence with the fence which is still there.  In order to do so, they would clearly have had to work from both sides of the fence.  Bearing in mind the statement by Megarry J. at the end of his judgment in Neilson v Poole, Mr Hawkes acted entirely reasonably in permitting his neighbour to maintain a flower bed where he did.”
No Assertion of Ownership
51.	Mr Morshead’s argument does not take sufficiently into account 2 points in the evidence.  Firstly as the respondent said in his second affidavit in answer to the appellant’s, (p.70), which was accepted –
“Before dealing with the affidavits individually, I should make the following point:  around the spring of 1970, Mr Scoffield, who was then the owner of number 41, told me that he had applied for permission to build an open ended lean-to temporary carport on his own ground against his own property.  I raised no objection.  Later he said that, in view of the limited space and the temporary nature of the carport, he would like me to agree to him bringing it up to and under my eaves.  I orally consented to this, but made it quite clear that it would not affect the question of the ownership of the land.  The open ended carport was then built, and remained as such until 1991.”
52.	Secondly there were the respondent’s actions in 1969 as found by the learned Recorder.  He replaced the rotten front fence employing Mr Gumbs at his own expense.  Mr Gumbs confirmed at the hearing that the north face of the posts were up to the mid-line of the pillar (judgment para.16).  That is a clear finding and contrary to any claims that the respondent did not assert ownership or any adverse inference being drawn from the fencing panels being on the respondent’s side.
Planting up to the Fence
53.	That this happened is not in dispute.  The question is whether the learned Recorder was entitled to draw the inference that this was reasonable and did not amount to an agreement nor adverse possession.  I have referred to his quotation from the judgment of Megarry J. in Neilson v Poole.  That is sufficient to meet Mr Morshead’s argument.
54.	The position has to be seen in context.  On the findings that were made the difference between the fencing panels and the north side of the posts is of course the width of those posts, which may be 2 ½ inches.  The respondent does not by his silence lose the right to assert ownership when he does not insist on his neighbour leaving a strip at the back of a flowerbed of this width.  It was an indulgence by the respondent.  For him to have asserted the contrary would have run the risk of being thought aggressive.  I reject the argument to the contrary.
55.	That conclusion is supported by an unreported Court of Appeal decision in Lorna Ellett-Brown v Tallishire Limited, 29 March 1990.  The strip of land in dispute was 4 feet wide and 470 feet long.  It lay to the east of a hedge dividing 2 properties and was claimed by the owner who lived on the west side.  She asserted that she had performed acts of possession in relation to the strip which were inconsistent with the owner of the east side’s claim to adverse possession.
56.	The owner on the east side relied amongst other things on the planting of daffodils along the disputed 4 feet strip.  In relation to that Lloyd LJ, as he then was, said –
“Firstly, the daffodils.  I decline to regard the planting of daffodils in the circumstances of the present case as an act of possession.  The common sense of the matter is that the daffodils were planted to adorn and beautify the entrance to Uplands.  The planting of daffodils on a vacant strip of land beside a drive cannot be regarded as an unequivocal act of possession, however many daffodils there may have been.  Mr Barlow estimated that there were thousands of daffodils, but he admitted that he is no gardener.”
57.	The east side owner also claimed other acts of ownership which were rejected, Lloyd LJ pointed out that possession in any event was not enough –
“So my conclusion is that the defendants have failed to prove factual possession of the disputed strip, since the acts of possession relied on are either too trivial or too equivocal to amount to acts of possession, save only for the gatepost where the judge has found an implied licence on the facts.  but, even if I am wrong about that, the defendants have failed to prove the necessary animus possidendi needed to establish adverse possession.  Indeed, the plaintiff has proved the reverse.”
Later he said –
“The paper title owner is not to be displaced too readily.  It would be a sad day for the law if the courts were to attach overmuch legal significance to acts which pass for nothing between good neighbours.  It would lead to this, that adjoining owners would have to be continually on the watch in case their rights were being infringed, and would then have either to stand on their rights, or grant an express licence for fear of losing their paper title.  This could do nothing but harm in an area where, as all experience shows, once good relations have broken down, bitter enmity so often sets in.  Anyone who has ever tried a typical boundary dispute, with all the expense of spirit which such disputes invariably entail, not to mention the expenditure of time and money, will recognise at once what I mean.”
Façade Abutting the Respondent’s Garage
58.	The learned Recorder said (para. 29) –
“Mr Hawkes had dealt with the history of the garage at no. 41 in his affidavit sworn on 16 August 1996.  In brief, Mr Scoffield applied for permission to build an open-ended lean-to temporary carport, to which Mr Hawkes did not object.  Mr Scoffield asked if he could bring it up to and under the eaves of Mr Hawkes’ garage, to which he consented, but made it clear that it would not affect the ownership of the land.  The open-ended carport was built and remained in that form until 1991.”
59.	In the context in which that appears in the judgment I am satisfied that it reflects an acceptance of what the respondent had said.  It does not appear later when the question of the gap was further addressed, no doubt because it had already been considered.  If it was an agreement, it related solely to the façade not the gap behind it, though the gap would be blocked at one end.  It was a sliver of land of no value to either party.  I do not regard the limited permission granted as more than a licence at best, relating only to the facade.  If it was, it was restricted in extent and negated any intention to possess.
The Fence as a Boundary and the Respondent’s Assertions
60.	I do not see in the light of my conclusions above that leaving the gap unused be it 2 ½ or 6 inches, meant that any agreement can be inferred.  It is negatived by the respondent giving express permission about the façade, and his rebuilding of the front fence at his expense.  Though I have reservations about presumptions or evidence dependant on the ownership of other fences between different owners, I am satisfied that the learned Recorder was entitled –
a)	To rely on the measurements he mentioned.
b)	To conclude that there was no sufficient basis to infer an agreement to change the boundary.  The acts were too trivial and there was no intention to possess.
Adverse Possession
61.	But that is not an end of the matter.  The appellant relied in addition upon adverse possession.  His evidence and that of Mr Wall his architect in paragraphs 3 and 4 of the Amended Defence and Counter Claim (p.46), was that the new garage, as I have said, followed the “footprints” of the old garage.  Thus the appellant said in his first affidavit (p.102) -
“It can be seen that the proposed garage matches the “footprint” of the previous garage in terms of its external dimensions.  The only differences are that the garage is marginally longer, the roof is slightly different (not shown on the drawings but referred to in the decision of the Planning Inspector), and that part of the internal space is taken up by the brick wall which replaces the existing structure.”
62.	In his affidavit of 22 July 1996 Mr West his architect attested, (p.114) –
“I prepared drawings including the three drawings which are at pages 1-3 of Exhibit ‘OJHW1’.  The drawing at page 1 is a drawing of the previous garage and the drawing at page 2 is a drawing of the proposed new garage.  It can be seen that the external dimensions of the proposed garage match the “footprint” of the previous garage.”
63.	The respondent set out the position in paragraph 2 of his affidavit of 16 August 1996, (p. 70) –
“Before dealing with the affidavits individually, I should make the following point:  Around the spring of 1970, Mr Scoffield, who was then the owner of no. 41, told me that he had applied for permission to build an open ended lean-to temporary car port on his own ground against his own property.  I raised no objection.  Later he said that, in view of the limited space and the temporary nature of the car port, he would like me to agree to him bringing it up to and under my eaves.  I orally consented to this, but made it quite clear that it would not affect the question of the ownership of the land.  The open ended car port was then built, and remained as such until 1991.”
Later in his statement of 29 January 2001, he said (p.84) –
“I am not primarily concerned with the history of the various garages which may have been built or demolished at no.41, but I have personally attended the Local Planning Authority offices and recently been assured that though Mr Scoffield applied for permission to demolish a garage and substitute a car port in 1970 they have no record of any such garage ever having been built, or any subsequent correspondence, nor a record of any car port, or any garage whatsoever having been built prior to Mr Howe’s new garage in 1996.”
64.	There was a second point.  Even if the new garage at no. 41 did go over the southern boundary of the former garage, does the state of the roof of the former garage prior to its demolition make any difference?  The point can be most readily understood by looking at photographs p.274 and 308.  These show the roofs of the 2 garages as they were.  At the front whilst the fascia of no. 41 goes across and abuts no. 39, behind it there is a gap between the corrugated roof of no. 41 and the corrugated wall of no. 39.  That is covered by a piece of timber stretching perhaps halfway along the length of the garages.  There is then a gap difficult to estimate but perhaps 3 or 4 feet long.  The last part of the gap appears to be covered by a further piece of corrugated roofing over the gap with the wall of no. 39.  It appears from the photograph at page 308 to come very close to or touch the wall of the respondent’s garage.
65.	The question then arises whether the presence of the timber and the extended roof could amount to possession of the strip below with the necessary intention to possess as Mr Morshead argues.  Is it a case where, as Neill LJ observed in Ellett-Brown v Tallishire Limited, the paper title owner is not to be displaced too readily and matters such as this are too trivial or equivocal, or could it be both a sufficient act of possession with an intention to possess?  We are told this point was argued before the learned Recorder.  Without findings of fact, I do not see that the argument can be dismissed, nor that I should substitute my own view.
66.	The difficulty about the footprint argument is the absence of findings in the judgment.  The learned Recorder said (at para. 26) –
“Mr Hawkes then referred to photographs showing the roofs of the two garages (pages 211, 112, and 213), these were apparently taken by the Defendant on 1 July 1996, the day when the demolition took place.  Mr Hawkes relies on these photographs to demonstrate the width of the gap between the two structures, which he says is six inches.  He agrees that at the front the fascia to the garage of no. 41 comes very close to the edge of no. 39, but he relies on the length of timber, which is visible, running alongside the roof of no. 41 (from left to right on the photographs) as indicating the existence of the six inch gap.  In that respect, it must be said, that the length of timber would have to have been resting on part of the structure in order to keep it in place.  Yet although I accept that it may well have been covering a gap between the two garages, I am not persuaded that that gap was six inches wide.”
67.	Mr Morshead is correct in my judgment in stating that whilst the learned Recorder compared the position of the new garage with the boundary as he found it, nowhere did he consider a comparison between the position of the new with the old garage.  Accordingly he made no sufficient findings relating to the issue of adverse possession.  It remained a live issue.  In addition, even if he found that the new garage went nearer to the respondent’s garage than the old one, he still had to consider the question of the timber on the roof and the roof at the rear touching or coming close to the garage at no.39.
68.	That failure to make the necessary finding is of fundamental importance.  It was raised as a specific defence.  It meant considering the position of the south wall to the appellant’s present garage with the position of the same wall of his former garage.  If they coincide then that would have been likely to defeat the respondent’s claim on trespass subject to one proviso.  That is that the occupation by the appellant and his predecessor in title over the 12 years and more prior to June 1996 also gave rise to an intention to possess.
69.	These are questions of fact.  The answers do not regretfully appear from the papers before us.  In my judgment, this court cannot make the appropriate findings.  The answer may appear sufficiently clear from photographs not all of which we have seen.  It may well require direct evidence.
70.	In the light of my earlier conclusions there must be a further hearing.  Clearly this is most unfortunate given the nature of the dispute and the length of the proceedings so far.  But despite anxious consideration, I do not see how this can be avoided.  It will hopefully save time if it is listed again before Mr Recorder Hurst QC.  It leaves one final and important submission raised by Mr Morshead.
General Damages of £2,000
71.	It is said that both as a clear pleading point and as a matter of evidence it was not open to the learned Recorder to make this award.  Mr Morshead seeks leave to appeal on this topic.  We do not have a transcript of the further submissions nor a note or transcript of the judgment.  In so far as the learned Recorder dealt with this in his main argument, he said (at para. 75) –
“……. the garage has been built oversize by 6.5 centimetres, or 2 ½ inches.  The garage encroaches the boundary by that distance.  The claimant seeks an order that the defendant should remove the wall from his land.  Mr Morshead argues that the claimant has identified no damages in relation to the presence of the garage wall, but it cannot be denied that should Mr Hawkes choose to build a garage, he has less space to do so than would otherwise be the case.  In my view the correct remedy in respect of this issue is an award of damages not destruction of the defendant’s garage wall.  I will hear further submissions on this point.”
The Pleadings
72.	Mr Morshead’s point is a short one.  In the Particulars of claim and Amended Particulars of Claim, both drafted by solicitors for the respondent, the claim was for (p.41) –
“(a)	An injunction restraining the defendant from constructing a garage or any building at No. 41.
(b)	Damages.
(c)	Costs.”
73.	At a hearing on 15 June 2000 District Judge Allen ordered (p.54) –
“1.	Unless the claimant by 4.00pm on 6 July 2000 files and serves on the defendant re-amended particulars of claim –
a)	including a claim for possession of the disputed land and/or
b)	fully particularising his claim for damages,
then he be respectively –
i)	debarred from seeking possession and/or
ii)	his claim for damages be struck out.”
Other interlocutory directions were made.
74.	The respondent responded by re-amending his Particulars of Claims as follows-
“RE-AMENDED PARTICULARS OF CLAIM
Particulars
The plaintiff’s wooden frame and bottom wooden rail upon which the garage flank wall panels hang and the shelving needs must be dismantled to afford access to reinstate the foundations so undermined and thereafter reinstated, the cost thereof being in the sum of £904.75, equivalent to £770 plus VAT.
In any event the tort of trespass is actionable without proof of loss.
AND THE PLAINTIFF CLAIMS:-
(A)	An order that the defendant do remove the wall from the plaintiff’s land,
(B)	An order for possession of the plaintiff’s land.
RE-DATED the 3 July 2000.”
75.	The question that arises is what that further pleading should reasonably have meant to the appellant.  In my judgment it meant the respondent was claiming £904.75 as special damages.  He was not seeking anything further in relation to the trespass on the basis that this was actionable without proof of loss, in other words nominal damages.
76.	Whilst the respondent was seeking to recover his land he made clear that he was not seeking to recover any specific sum by way of general damages.  This could have arisen for instance if he wished to claim that his garage would lack in future the potential for bigger vehicles or his land was otherwise diminished in value by the loss of this area of 2 ½ inches by 15 feet or so.  For these reasons or other reasons he might have claimed that the trespass was one which went beyond nominal damages.  This was not mentioned.
77.	This was of particular importance to the appellant.  He was represented throughout.  Since 3 July 2000 the respondent acted in person.  There had already been an order for costs arising from the respondent’s application without notice to obtain an injunction which was subsequently dismissed.  In a dispute of this nature costs are likely to be far more important than the subject matter of the dispute.
78.	In my judgment the appellant was entitled to rely on the Re-amended Particulars of Claim as defining the limited of his potential liability.  He was aware that the respondent was seeking possession of his land, and £904.75 to re-instate the foundations.  He was not informed that the respondent would claim general damages in some significant sum if the injunction was not granted.  He was not therefore put on notice that valuation evidence would be necessary in order to prepare for trial, nor given any other figures by the respondent despite an order that he should provide them.
79.	Mr Morshead told us that at trial the respondent in fact claimed £60,000 by way of general damages which he subsequently reduced to £25,000.  There was no warning of this and whilst the learned Recorder clearly attempted a pragmatic view of the matter, the point remains that the appellant was not given any notice of such a claim.  This affected his decision on whether to prepare valuation evidence and also in relation to any Part 36 offer he might wish to make.  We were told he did make a Part 36 offer, though rightly not its terms.
80.	The figure of £2,000 was not based on any evidence.  It was plucked from the air as an attempt to compensate the respondent for the loss of his land as an injunction was refused.  I have sympathy for the learned Recorder.  He did not want an adjournment for valuation evidence to be obtained and quite possibly a further disputed hearing with all the costs that would follow over such a small sliver of land.
81.	He sought to determine a sum which, whilst not insignificant, did not veer too much towards the respondent’s inflated and unsupported claim.  It may or may not be within an appropriate range.  But it lacked any basis other than what was no doubt hoped to be pragmatic and sensible.
82.	I do not see that that award can stand.  But I have come to the conclusion that it would not be within the overriding objective to allow this matter to be re-litigated.  It would be unfair to the appellant and disproportionate.
83.	The overriding objective is in Part 1 of the Civil Procedure Rules 1998.  It is in the following terms –
a)	“These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
b)	Dealing with a case justly includes, so far as is practicable –
i)	Ensuring that the parties are on an equal footing;
ii)	Saving expense;
iii)	Dealing with the case in ways which are proportionate –
(a)	To the amount of money involved;
(b)	To the complexity of the issues; and
(c)	To the financial position of each party;
iv)	Ensuring that it is dealt with expeditiously and fairly; and
v)	Allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”
84.	The appellant was asked fully to particularise his claim for damages.  If he did not his claim for damages would be struck out.  He sought the removal of the wall.  He had been represented by solicitors.  It was in any event obvious that, even if successful on his claim in trespass, he might not persuade a court to order the removal of the wall.  The burden lay on him to put forward any claim for damages on which he was relying.  If he did not do so the order made it clear that he could not do so later.
85.	It follows that if he wished to make a claim for diminution in value he had to provide particulars.  He did not do so.  He went further.  He said he did not have to raise any claim other than for £904.75 because trespass was actionable without proof of loss.  That meant that he was not going to make any other claim.
86.	The respondent was entitled to rely on that interpretation, to prepare his case accordingly, and to make a Part 36 offer on that basis.  There is no indication that the learned Recorder ever considered this point though Mr Morshead tells us that he raised it.
87.	I have already commented on the figure of £2,000 which was awarded.  Given no basis on which it was assessed nor the considerations which were taken into account, I do not see that that figure can be supported.  Equally there is no basis upon which this court could substitute any alternative figure.
88.	One alternative in these circumstances is to remit the matter for further consideration in the light of such evidence expert or otherwise than might be given.  I would reject that alternative for the following reasons.
89.	The respondent had the opportunity to put forward his full claim.  He chose not to take it.  It would be wrong to give him a second chance to prepare his case and give details of it.  Such a chance would be unfair to the appellant who was entitled to rely on the respondent’s answer to the order in both preparing his case and making his Part 36 offer or payment.  To re-open the case nearly 6 years after it started and in respect of such a small claim would be to deprive the appellant of an equal footing with the respondent, incur further expense disproportionately high to the subject in dispute, and be disproportionate to the amount in dispute and the importance of the case.
90.	For the reasons I have given for my part –
a)	I would dismiss the appellant’s appeal against the learned Recorder’s findings about where the boundary lay.
b)	I would also dismiss the appeal against his finding that there was no boundary agreement.
c)	I would give the appellant permission to appeal against the failure of the learned Recorder to making findings in relation to adverse possession and allow the appeal on that issue.  I would remit the case for further consideration on that point only.
d)	I would also give the appellant permission to appeal against the award of damages.  I would reduce the sum awarded for £2,904.75 to £906.75, awarding £2.00 instead by way of nominal damages.  Subject to what happens on liability, I would give permission to appeal, allow the appeal, and reduce the damages to that extent.
91.	During the preparation of this judgment a note has been received from Mr Morshead in relation to the application for permission to appeal on the question of damages.  It relates to circumstances in which if this court were to grant permission to appeal but to direct a retrial, the appellant would wish to withdraw the appeal on that ground.  In the event that point does not arise.
92.	Accordingly the award of £904.75 stands in any event.  If there is a further judgment for the respondent on the issue of adverse possession in due course, the respondent will receive a further £2.00 by way of nominal damages for trespass.  If the appellant succeeds on that issue, the respondent’s damages will remain in the sum of £904.75.
Lord Justice Keene:
93.	I agree.