An Englishman’s home and boundary dispute

Posted: 16th March 2012

Field

A recent decision of the Court of Appeal illustrates the importance of having accurate plans on transfers of property, particularly when part of the land is being sold, and the essential requirement that must be fulfilled for a right of way to be enforceable. The case, which featured a so-called ‘wiggly path’ which led nowhere, may also be seen as an example of the ‘territorial imperative’ driving boundary litigation which was referred to by the Court of Appeal in another recent case.
Mr Kennerley owned a property named Old Westwick in Guildford, Surrey. His neighbours, Mr and Mrs Beech, owned a house called Ruckstones which had been built on a former part of Old Westwick’s garden in the 1950s.
A dispute between the neighbours arose over the position of the southern boundary of Old Westwick and in particular whether that boundary lay at the top or bottom of a relatively steep bank, the top of which was marked by a hedge. Mr Kennerley claimed that his boundary extended to the bottom of the bank, whilst the Beeches alleged that the boundary was at the top of the bank.
Mr Kennerley also claimed that his property had the benefit of a right of way by foot over a pathway, the ‘wiggly path’, which ran down the eastern side of the Beeches’ garden. While this path had originally led to a kitchen garden on land retained by the former owner of Old Westwick, by the time of the dispute it had been unused for over 50 years and, following the demise of the kitchen garden, led nowhere, except to Mr and Mrs Beech’s garden.
Both the judge at first instance and the Court of Appeal found, as a matter of fact on the evidence, that the boundary was at the top of the bank as marked by the hedge, bringing to an end a dispute that may never have arisen had the plans drawn up on the original sale been clearer.
As to the path, the Court held that the fact that it led nowhere was not in itself material, but for a right of way to exist, it was essential that it could be shown to benefit and permanently enhance the ownership of Old Westwick. That could not be shown. The original grant of the right of way was therefore contractual in nature only and not enforceable against the subsequent owners of Ruckstones.