Burns & Anor v Morton

Factual and Procedural Background

The dispute arises from a boundary disagreement between the Plaintiff and the Defendant, owners of adjacent properties at 5 Orchard Gardens and 4 Orchard Gardens, respectively, in The City. The Plaintiff alleged that the Defendant clipped and pruned a Leylandii hedge belonging to them and located on their land. The Defendant claimed entitlement to do so, asserting the hedge encroached onto his land. The properties share adjoining gardens, and the issue centered on the true boundary line between these gardens.

Historically, both plots were jointly owned in 1965 before being conveyed separately in 1965 and 1967 with conveyances containing provisions regarding party walls or fences dividing the properties. A fence existed along the boundary prior to 1979. The Defendant purchased 4 Orchard Gardens in 1977 and replaced the boundary fence with a wall set six to nine inches inside his side of the former fence line. The Plaintiff purchased 5 Orchard Gardens in 1990. Subsequent disputes over the boundary and related issues led to the litigation.

The trial judge found that the wall built by the Defendant in 1979 became the boundary between the properties, effectively granting the Plaintiff a strip of land approximately six to nine inches wide. The judge concluded that the Defendant trespassed on the Plaintiff's land by pruning trees beyond the true boundary and awarded damages accordingly. The Defendant appealed this decision.

Legal Issues Presented

1. Whether the boundary between the two properties was altered by the erection of the wall by the Defendant in 1979, set inside the original boundary line.
2. Whether the wall constructed by the Defendant constituted a party wall and the true dividing boundary between the properties.
3. Whether the Defendant was entitled to prune the hedge on the Plaintiff's land based on his belief about the boundary.
4. The legal effect of the conveyances’ provisions regarding party walls or fences on the determination of the boundary.
5. The applicability of the doctrine of implied agreement or boundary agreement between adjoining owners in altering the boundary line.

Arguments of the Parties

Appellant's Arguments

• The Defendant contended that building a wall within his own property could not legally transfer ownership of the strip of land between the center of the wall and the original boundary to the Plaintiff.
• The Defendant argued that the dividing walls mentioned in the conveyances merely referred to walls dividing properties and did not define the boundary line between them.

Respondent's Arguments

• The Plaintiff submitted that the wall erected in 1979, despite being slightly inside the original boundary, was intended and accepted as the new boundary between the properties following an oral agreement.
• The Plaintiff emphasized that the conveyances’ wording referring to dividing or party walls was critical in establishing the boundary line.
• Relying on Land Registry practice, the Plaintiff argued that the boundary must be ascertainable by reference to the party wall, as the plans attached to the conveyances were not sufficiently detailed.
• The Plaintiff cited Neilson v Poole [1969] 20 P&CR 909 to support the proposition that an implied boundary agreement could alter the boundary line and that the wall should be regarded as a party wall owned jointly.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the conveyances’ provisions describing dividing walls as party walls, concluding these provisions indicated an intention that such walls demarcate the boundary between the properties. The court noted that the original fence was the boundary before 1979 and that the Defendant’s wall was built within his property but close to the original boundary line.

The court found it necessary to determine whether there was an implied agreement between the parties that the new wall would constitute the boundary. Drawing on the precedent set in Neilson v Poole, the court recognized that such an implied agreement could legally alter the boundary line.

The judge inferred from the evidence and the long-standing acceptance of the wall’s position by both owners that an implied agreement had been reached in 1979 to recognize the wall as the boundary. The court rejected the Defendant’s argument that the wall’s location within his property precluded any transfer of land, emphasizing the importance of the conveyances and the practical realities of boundary demarcation.

The court also upheld the trial judge’s finding that the Defendant’s pruning of the Plaintiff’s hedge constituted trespass, as the Defendant’s belief about the boundary was mistaken and did not justify self-help.

Holding and Implications

The court dismissed the appeal.

The ruling affirmed that the boundary between the properties was effectively altered by an implied agreement when the Defendant built the wall in 1979, which became a party wall and the true dividing line. The Defendant was found to have trespassed on the Plaintiff’s land by pruning beyond this boundary. The decision confirmed the importance of conveyance provisions and implied agreements in boundary disputes but did not establish new legal precedent beyond applying existing principles. The direct effect is that the Plaintiff retains ownership of the strip of land delineated by the 1979 wall, and the Defendant’s appeal was refused with costs. Leave to appeal to the House of Lords was also refused.