Factual and Procedural Background
This action concerns a boundary dispute to the northeast side of a property referred to as 159 Marshall Lake Road ("159"), owned by the Defendants since 2008. The adjacent property to the north is a driveway with its own registered title, leading to a plot known as 159A Marshall Lake Road ("159A"), owned by Company A, a British Virgin Islands company. Company A acquired 159A and the driveway in 2009. The dispute focuses on a narrow strip of land approximately 19 inches wide along a 20-yard section of the boundary between 159 and 159A.
Company A was represented in the proceedings by a property agent, Mr. Aston, who had limited authority and acted under instructions from his stepfather, Mr. Ellis, based in Jersey. The Defendants had cleared vegetation and erected a fence along the disputed strip, which they contend is within their boundary.
The boundary dispute involves interpretation of historical leases, plans, physical boundary features such as a hedgerow, a low dwarf wall (now demolished), an electricity meter housing, poles, and fences. The Defendants purchased 159 as their family home, which had been extended sideways, encroaching near the disputed boundary.
The court considered historical conveyances, expert surveyor reports, and physical evidence to determine the correct boundary line and whether any informal boundary agreement or adverse possession applied.
Legal Issues Presented
- What is the precise boundary line between the properties known as 159 and 159A Marshall Lake Road?
- Whether extrinsic evidence, including historical leases, physical boundary features, and conduct of the parties, can clarify or redefine the boundary line?
- Whether an informal boundary agreement exists between the parties and what its effect is on the boundary determination?
- Whether the Defendants have acquired any rights by adverse possession over the disputed strip?
- What remedies are appropriate, including whether a mandatory injunction should be granted to require the Defendants to resite the fence?
Arguments of the Parties
Defendants' Arguments
- The Defendants contend that the disputed strip is within their boundary, supported by their clearing of vegetation and erection of a fence.
- They argue the 1934 underlease is of no evidential value as it was not a conveyance dividing ownership of the boundary in dispute.
- They rely on evidence of Mr. Parker’s staking of the boundary and his agreement to tree felling as indicative of the boundary line.
- They submitted that the low wall was entirely within their boundary and that the electricity meter housing may have overhung their land.
- They contest the reliability of Company A's agent and the evidence supporting Company A's boundary claims.
- They oppose the granting of a mandatory injunction to resite the fence, emphasizing the home as a protected space.
Company A's Arguments
- Company A relies on the 1934 underlease as the first legal demarcation of 159’s boundaries and as a starting point for determining the boundary.
- They argue the low wall and other boundary features support their claim to the disputed strip.
- They contend that the Defendants have encroached on their land and that the fence is improperly sited.
- They submit that the Defendants have sought to colonise their land rather than act out of necessity.
- They seek remedies including a mandatory injunction requiring the fence to be moved.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Neilson v Poole (1969) 20 P&CR 909 |
Importance of proclaiming a definite boundary line to avoid "fuzzy" edges in boundary disputes. |
The court emphasized the need to define the boundary precisely between the disputed properties. |
| Stephenson v Johnson |
Recognition and enforceability of informal boundary agreements between neighbours. |
The court accepted the existence of an informal boundary agreement as a valid basis for defining the boundary line. |
| Shelfer's case |
Discretionary principles governing the grant of injunctions and the possibility of awarding damages as an alternative. |
The court refused the mandatory injunction but considered awarding modest compensation to Company A for the land occupied by the fence. |
Court's Reasoning and Analysis
The court began by reviewing the historical conveyances, particularly the 1934 underlease, which delineated 159 as a rectangular plot but did not conclusively define the disputed boundary line. The court accepted expert evidence that the original boundary between the fields was probably a hedge, supported by historical maps and the absence of other boundary structures.
The court examined various physical features: the low dwarf wall was found to have been built on Company A's land and not part of 159 originally; the raised bank was likely created during construction of the driveway and nursery access road, and thus within Company A's land; the electricity meter housing was built circa 1956 and was sited entirely within Company A's land, despite some damage and movement to accommodate the Defendants' fence.
The court found that the chainlink fence, an earlier boundary marker, could not have been original to the 1934 construction and was not conclusive evidence of the boundary line. The court also rejected the note purportedly evidencing an oral boundary agreement as a forgery but accepted that an informal boundary agreement could exist independently of that note.
Credibility findings included criticism of Mr. Aston's limited authority and dependence on others for instructions, and concerns about the Defendants' conduct in relation to the forged note. However, the court found no evidence to support adverse possession claims by the Defendants.
Taking into account the extrinsic evidence, expert reports, and conduct of the parties, the court found the boundary line to be a straight line north of the felled trees but south of the electricity meter housing roof, approximately 5 inches south of its current position, running at right angles to Marshall Lake Road.
The court considered what a reasonable lay purchaser in 2008 would have understood the boundary to be, concluding that the disputed strip was not clearly within the Defendants' ownership and that further enquiry would have been necessary.
Applying the legal principles and the rule in Stephenson v Johnson, the court found there was an informal boundary agreement demarcating the boundary line, which took precedence over the extrinsic evidence. The court also applied the principles from Shelfer's case in considering remedies.
Holding and Implications
DISMISSED the claim for a mandatory injunction requiring the Defendants to remove and resite their fence.
The court held that the boundary line is defined by an informal boundary agreement running between the parties' respective properties, located between the expert surveyors' proposed lines. The Defendants' fence encroaches slightly on Company A's land, but the court refused to grant an injunction to remove it, acknowledging the Defendants' reasonable actions in protecting their home from overgrown vegetation and nuisance.
Instead, the court indicated that Company A may be entitled to modest financial compensation for the narrow strip of land occupied by the fence, reflecting the land's limited commercial value. This decision preserves property rights while balancing practical considerations and neighbourly conduct.
No new precedent was established; the decision applies established principles of boundary determination, informal agreements, and equitable discretion in granting injunctions.