B2/2004/1417 
Neutral Citation Number: [2005] EWCA Civ 120
IN THE SUPREME COURT OF JUDICATURE 
IN THE COURT OF APPEAL (CIVIL DIVISION) 
ON APPEAL FROM BARNSTAPLE COUNTY COURT
(HIS HONOUR JUDGE MCKINTOSH)
Royal Courts of Justice 
Strand 
London, WC2 

Monday, 31st January 2005
 
B E F O R E:

LORD JUSTICE LATHAM 
LORD JUSTICE NEUBERGER 
 
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GWENDOLINE ELSIE HERBERT
Claimant/Respondent
-v-
 
(1) SUSAN ELIZABETH PEGRUM
First Defendant 
(2) JAMES WARING PEGRUM 
Second Defendant/Applicant 
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(Computer-Aided Transcript of the Palantype Notes of
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The Applicant appeared on his own behalf 

MR JONATHAN BARNES (instructed by Messrs Paul Finn Solicitors, Bude EX23 8SY) appeared on behalf of the Respondent
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J U D G M E N T
1.	LORD JUSTICE LATHAM: I will ask Lord Justice Neuberger to give the first judgment.
2.	LORD JUSTICE NEUBERGER: This is an application for permission to appeal out of time with the appeal to follow, if and to the extent that permission is given.
3.	The application is brought by Mr James Pegrum and his wife, Mrs Susan Pegrum, who were defendants in proceedings brought by Gwendoline Herbert in the Barnstaple County Court, and heard by His Honour Judge McKintosh in Exeter Combined Court. He gave judgment on 14th October 2003. The issue concerned the location of the boundary between the property owned by the claimant, known as “Posada”, and a property owned by the defendants, known as “Gaumont House”. The claimant's property was to the north and the defendants' property was to the south. There was a considerable amount of evidence given, including expert evidence, and various plans were produced.
4.	It is clear that for a long time the two properties were separated by a stream which ran to the north of the defendants' property and to the south of the claimant's property. When, or about the time that, the defendants' house was built, the stream was replaced by a culvert. There was considerable discussion and debate about the location of the boundary. As I read his judgment, the learned judge would have found that the boundary (as would have been agreed between the parties in principle) lay along the centre of the stream, because of the normal presumption which applies in such circumstances, but, because of the terms of a conveyance executed on 19th October 1931 (“the 1931 conveyance”) an estoppel had arisen, effectively in favour of the claimant, so that the boundary was the southern bank of the stream. Considerable disputes of evidence and debate occurred as to where the precise location of the stream would have been. The judge's conclusion his judgment was that there should be:
“... judgment for the claimant and a declaration that the southern boundary of her land is on a line which is six feet from the centre line of the first bit, the east to west run of the leylandii presently planted there save where the leylandii changed direction towards the north west when, in fact, the boundary line shall follow the bottom, the very bottom edge of the bank on a curve and as it goes back towards the two corner fence posts of the western end fence of the defendant's garden and the fence of the other neighbour where they meet.”
5.	It was I think an extempore judgment and in fairness to the judge, reading that passage, as it were, out of context may not make it seem entirely clear. But it is important to note that he fixed the eastern part of the boundary by reference to a leylandii hedge which, according to Mr Pegrum, has been fully uprooted by the claimant subsequent to the judgment and therefore no trace of it remains. But according to Mr Jonathan Barnes, who appears for the claimant, there are three roots still in place.
6.	At a later date the parties appeared before the judge and he approved the line of a boundary which is shown, so far as relevant for present purposes, on page 120 of respondent's bundle B put before us today. The boundary shown is slightly curious because if it were a straight line on the eastern part it would cut through the northern part of Gaumont House, and it is kinked round Gaumont House so that it does not cut through it.
7.	The judge's decision was not the subject of any application for permission to appeal until July 2004. Mr Pegrum appeared before me on 29th July, in the absence of Mrs Herbert or her representatives. I gave a judgment deciding, for the reasons there given, that the fairest course to take would be for Mr Pegrum's application for permission to appeal and for permission to appeal out of time to be heard by two Lords Justices, with the appeal to follow if permission to appeal and permission to appeal out of time were given. It is on that basis that the matter now comes before us.
8.	At the hearing before Judge McKintosh, Mr and Mrs Pegrum were represented by a solicitor, who was asked by the judge whether he wanted to appeal and he said “no”. As I have mentioned, this appeal is brought substantially out of time. Given that no prejudice has been alleged on behalf of Mrs Herbert simply due to the delay and given that there is an excuse, in the sense that Mr and Mrs Pegrum represented themselves and had no firm idea as to precisely where the boundary was to go and no order in formal form to appeal until well into 2004, it seems to me that there is some room for arguing that we should entertain the appeal. But equally it seems to me that, bearing in mind that the Pegrums' solicitor was asked whether he wanted to take up the opportunity to appeal -- and indeed they instructed other solicitors who in early 2004 indicated they were considering an application for permission to appeal -- this application for permission to appeal out of time is not one which is plainly justified, but must be carefully scrutinised.
9.	In that connection it is important to identify two separate aspects of the application for permission to appeal. The first is based on the judge's finding of an estoppel. The second is the judge's findings on the facts. The two are entirely separate and it is perfectly possible for one aspect to be appealed without the other.
10.	As Lord Justice Latham has indicated, having heard from Mr Pegrum and also having considered the arguments of Mr Barnes, we are firmly of the view that permission to appeal should not be given on the issues of fact. Mr and Mrs Pegrum are entitled to a brief explanation of our reasons. First, as explained to Mr Pegrum by my Lord, a judge's findings of fact are very rarely interfered with by an appellate court. Of course if it can be shown that a judge was plainly wrong, or that there was no basis for his conclusions or that he plainly misunderstood evidence, different considerations apply.
11.	Secondly, Mr Pegrum complains that the judge did not properly consider his evidence that the leylandii had been moved; i.e. one leylandii hedge had been pulled down by Mrs Herbert and another one planted further south. In that connection there is no clear statement to that effect in his witness statement, as he suggested, and it does appear that the point was not put to any of the claimant's witnesses by Mr Pegrum's solicitor. To my mind the judge was entitled to take the view that this was not a topic on which Mr Pegrum could give evidence. In any event it is unclear to me on looking at the transcript that the point was made clearly to the judge by Mr Pegrum's solicitor.
12.	Secondly, I should refer to pages 44 and 45 of the transcript which Mr Pegrum has obtained of the hearing on 13th October, which suggests that the claimant's expert and the judge were accepting that the middle of the watercourse hit a stone wall or arch running on the eastern boundary of the two properties in about its centre. To my mind that evidence is entirely consistent with the centre of the line of the watercourse being where the judge held it was (in the absence of the estoppel), at any rate looking at the plan on page 120.
13.	Mr Pegrum has also referred to photographs, but he accepted, when my Lord put to him, that photographs can be taken in such a way, often unintentionally, to show an inaccurate picture. He relied on a particular photograph taken of Mrs Pegrum, indicating that the judge must have been wrong about the line of leylandii. But that was a photograph which, as my Lord pointed out, was not before the judge, and indeed could not have been because I think it was taken after the judgment.
14.	Mr Pegrum also has made allegations of perjury against various witnesses. I was very clear that those were not points which stood any real chance of success and should not be pursued, and very sensibly he has not pursued them today.
15.	The judge's identification of the location of the boundary, particularly if Mr and Mrs Pegrum succeed on the estoppel point, is not something which would cause them difficulties. I asked Mr Pegrum what problems he and his wife would face if the boundary were where it would be if he succeeds only on appealing the estoppel point. He merely said that they would lose land that he thought was his (which would be a fairly small strip), and that they would not be acquiring the culvert that they thought was theirs. That of itself I appreciate, particularly to the person involved, can seem to be very important. But bearing in mind we are considering an application for permission to appeal out of time, it appears to me that a factor which can properly be taken into account is that this is not, viewed objectively and fairly, a matter of great significance to either party.
16.	In those circumstances, as my Lord indicated, we refused permission to Mr and Mrs Pegrum to appeal on the point of fact.
17.	I turn to the point of law upon which Mr and Mrs Pegrum were given permission to appeal. It turns on the effect of the 1931 conveyance which was made between the Blanchminster Trustees, in their capacity (for this purpose) as the Pegrums' predecessor in title, and a Dr Ponton, the predecessor in title of Mrs Herbert.
18.	The plan attached to the 1931 conveyance shows the “land of Dr Ponton” bounded on the west by a line marked “240' 0”“ and bounded on the south by a stream which is shown as having some width, i.e. not just a line, and with the line of the stream, i.e. the direction of the water flow, marked with an arrow, and with the word “stream”. One could argue that the nature of the lines bounding the stream -- a continuous line to the north and a dashed line to the south -- might indicate that the stream was intended to be excluded from the land conveyed to Dr Ponton. But to my mind, as a matter of normal conveyancing that would not be strong enough to rebut the normal presumption that the stream is to be treated as divided laterally, so the northern half was treated as conveyed to Dr Ponton and the southern half treated as retained by the trustees.
19.	Mr Barnes' argument (which was accepted by the judge) was that paragraph 6 of the preamble and clause 2 in the body of the 1931 conveyance gave rise to an estoppel. As he fairly says, the paragraph in the preamble adds nothing to the clause in the conveyance, which is in these terms:
“The purchaser as beneficial owner hereby grants unto the Trustees and their successors full and free right and liberty to make a road on and over the ditch or watercourse on the south side of the property ... as shown ... coloured green on the said plan and to go and to repass over the same with or without horses [together with certain other rights].”
20.	I indicated in the judgment I gave on Mr Pegrum's application that I had some difficulty in seeing how this gave rise to an estoppel. Having heard Mr Barnes' shortly expressed but cogent submissions, I remain of that view. As he very fairly accepts, an estoppel can only arise from clear words. I am tempted simply to say that I find it difficult, indeed I find it impossible, to see how the words of clause 2 of the 1931 conveyance can amount to a clear indication that the whole of the stream was being conveyed to Dr Ponton. But I think I should say a little bit more about it.
21.	First of all, the words “the ditch or watercourse on the south side of the property” appear to me to be quite insufficient to amount to a clear indication that “the ditch or watercourse” was part of the “the property”. One naturally refers to a road, path, hedge or fence on the south side of one's property even though the road, path, hedge or fence is not part of one's property. It appears to me to be at best ambiguous.
22.	The fact that Dr Ponton was granted by the trustees the right to build a road over the stream appears to me to be perfectly consistent with the notion that Dr Ponton owned half the stream and the trustees owned half the stream. First, the shorthand reference to the stream is entirely consistent with that notion. Secondly, in any event it might have been important for the trustees to know that they were being given a right to construct a road over the whole of the stream. As it was only such a road over which they had “the right to pass and repass”, it might have been argued if they only had the right to build a road over his half of the stream, Dr Ponton would have come up with an argument that they could only exercise that right in relation to a road over his part of the stream, not a road over the whole part of the stream. Further, the trustees might have wanted to get on his land in so far as it was necessary to do so to build the road. The words were merely descriptive of the road that the trustees were going to build, not by any means necessarily an indication, let alone a clear indication, that the parties were regarding the whole of the stream as the property of Dr Ponton.
23.	It is only fair to Mr Barnes to record that, as he made very clear to us in his argument, this was not his main point. Indeed, the open offers that were made on behalf of Mrs Herbert, before these proceedings were heard, support that proposition. Nonetheless, it was an argument that found favour with the judge and, with all due respect to him, I think it was one that should not have done so.
24.	In those circumstances, for myself I would grant Mr and Mrs Pegrum permission to appeal in relation to the estoppel point and would allow their appeal, but would refuse them permission to appeal, as we have already done, in relation to the findings of fact.
25.	As to the precise instructions to be given to the surveyors or what should follow as a result of this, I would prefer to leave that to further argument. But I see considerable force in Mr Barnes' point that if -- and it is a matter of dispute -- the line of the leylandii as referred to by the judge in the passage of his judgment I have referred to is still to be identified, locating the boundary by reference to that line, albeit that, along the eastern part, it should be 3 feet rather than 6 feet from that line, would seem to me to be a sensible way to proceed. But if that line is not locatable, because what Mr Pegrum says is correct or for some other reason, then it may be necessary to have recourse to the plan at page 120.
26.	Subject to those observations therefore, I would grant permission to appeal and allow the appeal on the estoppel issue but refuse permission to appeal on the issues of facts. 
27.	LORD JUSTICE LATHAM: I agree.
28.	For the avoidance of doubt I would agree with my Lord in his comment as to the way in which the line can and should now be identified, using the words that the judge used in his judgment but amending them to the extent necessary to reflect the fact that we are moving the line 3 feet to the north of the line identified by the judge. The most practical way of achieving that would appear to be to utilise the plan which the judge had before him and which he utilised. I would accordingly allow the appeal to that extent, but to that extent only.
	(Further submissions) 
29.	LORD JUSTICE LATHAM: Having allowed the appeal to the extent that we have, we have now to consider the appropriate order that should be made in relation both to the costs below and the costs here.
30.	There is no doubt that this, as is so often the case with neighbour disputes, has an extremely unhappy genesis and the feelings that have been generated are bound to have made it difficult for matters to be resolved in the way which the court would always have hoped would have been possible. At the end of the day, the claim that was made by the respondent claimant was always put in the alternative as to the extent of the strip which was the consequence of her arguments, and the appellant at no stage conceded that either of the claims had any validity.
31.	We have concluded that the lesser of the two claims was the one which was justified by the material before us. It seems to us essentially in those circumstances that the claimant has made good her claim and accordingly is entitled to the costs of resolving that issue. In other words, the appropriate way to approach this is to say that she should have her costs below.
32.	Unhappily because it was put in the alternative, there was a claim beyond that to which she was entitled to which was an argument that the judge accepted, but which we consider to have been unjustified as a matter of law. The matter has had to come to this court to be resolved. It seems to me that the only way which that could be done, short of the order of this court, would have been an agreement between the parties which was effectively to the same intent as our judgment. If the position was that an unconditional offer to that extent had been made by either party, then that would have entitled that party to the costs of the appeal.
33.	There was an offer from Mr Pegrum to meet without any preconditions. That was accepted, but apparently only recently and reached no result. Accordingly, Mr Pegrum certainly cannot suggest that he has made an offer which would clearly entitle him to his costs.
34.	On the other hand, the respondent did make an offer which in relation to the substance of the appeal offered essentially what we have ordered, but it was subject to a substantial number of conditions which it seems to us mean that it cannot provide the respondent with the complete protection which she would need in order to obtain an order in her favour. However, it does seem to me that taken overall that particular offer was one which could and should have formed the basis for sensible negotiation. I take the view that as a consequence the right order in relation to the appeal is that there should be no order for costs on the appeal.
35.	LORD JUSTICE NEUBERGER: For my part, I entirely agree with what my Lord has suggested. It seems to me the justice of the case is fully met by the claimant having her costs below and there being no order for costs on the appeal.
	ORDER: Permission to appeal granted and the appeal allowed on the estoppel issue, but permission to appeal refused on the issues of facts; no order for costs on the appeal; the claimant and the defendants to instruct their respective surveyors to agree the line identified by this Court in its judgment; if that is not achievable, then the matter to go before the county court judge to resolve that issue. 
(Order not part of approved judgment)
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