Neutral Citation Number: [2008] EWCA Civ 1378
Case No: B2 2008/0524
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE SOUTHAMPTON COUNTY COURT
DISTRICT JUDGE TENNANT 
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17 December 2008
Before:

LORD JUSTICE WARD
LORD JUSTICE LLOYD
and
LORD JUSTICE RIMER
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Between:

	(1) HOWARD DAVID PIPER
(2) LYNDA CAROLE PIPER	Claimants
Respondents	
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	(1) JOHN WAKEFORD
(2) CLARA GWENDOLINE WAKEFORD	Defendants
Appellants	
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(Transcript of the Handed Down Judgment of
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Philip Glen instructed by Coffin Mew LLP) for the Appellants
Daniel Bromilow (instructed by Preston Redman) for the Respondents

Hearing date: 25 November 2008
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Judgment
Lord Justice Lloyd: 
1.	This is an appeal by the Defendants in a boundary dispute.  It is unusual in some respects, for example that it seems to be clear from the documents where the Defendants’ boundary lies, and the dispute is as to the position of that of the Claimants.  If the Defendants are right, there is land between the two boundaries which belongs to neither party.
2.	In other respects the dispute has all too many features that are usual and familiar: on the one hand the need for the parties to have their disputes resolved by the court, rather than by any process of sensible discussion, accommodation or mediation (though such processes were at least attempted) and, on the other hand, the fact that the issue turns on the interpretation of a conveyance and its plan, executed 100 years ago this year, in relation to which there is very little information available as regards the relevant surrounding circumstances, and where the information given by the document itself is inadequately detailed.
3.	The case came to trial before District Judge Tennant in the Southampton County Court.  He decided it with the benefit of a view of the site, and gave judgment, after a two day hearing, on 18 February 2008.  The Defendants’ application for permission to appeal is before us, having been directed to be heard with the appeal to follow.  We heard the case as if it were already a full appeal with permission.
4.	The Claimants own a house called Pinewood, with a substantial area of garden, at Curdridge, Hampshire.  The eastern boundary is a highway called Lockhams Road.  On, or a little way across, the southern boundary is the Defendants’ property.  (The Second Defendant is the owner, but the First Defendant was treated at trial as the prime mover in the dispute.  As the judge did, I refer to the Defendants together.)  This is one of two semi-detached houses; the other is called Summerlands Cottage.  Each of them has a garden, of which the eastern boundary is Lockhams Road, with direct access to the highway.  On the south-western boundary of Summerlands Cottage there is a lane or track leading only to Summerlands Farm, and the continuation of this is part of the boundary of Pinewood.  In the area of the northern boundary of Nirvana and the corresponding southern boundary of Pinewood there is a row of pine trees, which the judge held had been planted before 1926.  In essence the question is whether the Claimants’ boundary lies on their side, to the north of the trees, as the Defendants contend, or on the far side, the Defendants’ side, to the south of the line of trees.
5.	The District Judge held that the Defendants’ northern boundary lies to the south of the trees, and that the Claimants’ southern boundary is along the same line, so that the pine trees are comprised within the Claimants’ property, and there is no orphan strip (as it was described) between the land owned by the respective parties.  He also held that the Defendants had not acquired an adverse possession title to any land.  The Defendants accept that latter holding, and also the decision as to their own boundary.  They appeal against the decision as to the Claimants’ boundary.  They assert an interest in that issue on the basis that, in practice, they claim to be in possession of the land along the line of pine trees.  If the Claimants own that land, the Defendants’ possession is at risk from the Claimants; if not, then it is only at risk from an unknown third party.
6.	The conveyancing history starts a hundred years ago, with a conveyance on sale dated 2 July 1908, of what became Pinewood.  The conveyance was from John Boase Thomas to Andrew Mears.  Mr Thomas had acquired the land, with other land, by a conveyance on sale in 1907.  The verbal description of the land conveyed in the parcels clause of the 1908 conveyance (followed by an easement on which reliance was placed in argument) is as follows:
“All those two pieces or parcels of land situate at Curdridge in the County of Hants containing altogether One acre one rood and sixteen perches or thereabouts bounded on or towards the southeast by the road leading from Swanmore to Botley Station on or towards the northwest by a proposed new road there coloured brown on the plan endorsed on these presents and on or towards the southwest and northeast by other land of the vendor as the premises intended to be hereby conveyed are by way of identification but not of restriction or enlargement more particularly delineated in the said plan and thereon numbered 8 and 9 and edged with the colour pink together with the moiety of the said proposed road coloured brown on the said plan abutting on the said pieces of land hereby conveyed And together also with a right of way for the Purchaser his heirs and assigns and his and their tenants and servants and all other persons authorised by them from time to time and at all times hereafter in common with the vendor and all other persons entitled to use the said right of way to pass and repass with or without horses and other animals carts carriages and other vehicles over along and upon the whole of the road of a width of thirty feet or thereabouts between the points marked A and C and C and D on the said plan.” 
7.	Neither this plan, nor any other conveyance plan relevant to the case, is to scale.  The plan shows an area in roughly the form of a trapezium, with the highway as one side, roughly parallel to the shortest side, which is to the northwest.  This area is shown as being set out in numbered plots, of which numbers 5 to 10 are along the road, and 13 and 14 farther away.  The south-western edge of the area shows what I will call a lane (as it later became) leading westwards from the highway.  The north-eastern edge shows a “proposed road”, between points marked on the plan as A (at the highway end) and B.  Another proposed road bisects the area, from C to D, and divides plots 5 to 9 from plot 13.  The parts of these roads from A to C and C to D are coloured on the plan.  The lane on the southwest is not one of the proposed roads and is not coloured on the plan.  There is a line at point D at the end of the proposed road, suggesting that whatever would have marked the eastern boundary of the lane may have been intended to continue across the end of the proposed road, preventing access from the estate road to the lane, and vice versa.  Plots 8 and 9 run a little north of west from the highway, with the proposed road C to D as their western boundary, but abutting, as regards plot 9, also in part on the lane.  No dimensions are given for plots 8 or 9, but there are two important dimensions for plot 10, to the south: one of 120 feet along the highway, and one of 200 feet along the lane.  These are taken from the southern corner of plot 10, which is formed by the angle of the highway and the lane.  No dimension is given for the width of the lane.  To the untutored eye the lane is shown, in part, as being of about equivalent width to the proposed new road.  Relying on the terms of the right of way, more than on anything on the plan, it is said for the Defendants that the proposed new road was to be thirty feet wide, so that the lane should also be taken to have been intended to be of the same width.
8.	That conveyance is to be interpreted in the context of all relevant surrounding circumstances.  The only contemporary documents which assist are the 1909 edition of the Ordnance Survey and a plan accompanying an abstract of Mr Thomas’ title, which may have been one of the plans accompanying the 1907 conveyance to him.  Both of these show the trapezium as an enclosure numbered 237.  The highway was there already, as was a pond, on the boundary of field 237 which is also shown on the conveyance plan (but farther west than the land now relevant).  On the Ordnance Survey map, but not on the abstract plan, there is a mark in the enclosure which might denote a tree or trees, but it is too unclear for any reliance to be placed on it.  Otherwise there is only the boundary line between enclosure 237 and the next field to the west, numbered 297.  This goes straight back from the highway to the pond, and corresponds in that respect with the boundary line on the west side of the lane shown on the conveyance plan.  No such lane is shown as existing at that time.  It seems reasonably clear that the lane as shown on the 1908 conveyance plan was a proposed or intended lane, not one which had already been laid out or created.
9.	Thus, the assistance given by the dimensions marked on the plan for plot 10 is reduced by the fact that the point from which they are taken is on the boundary with the highway, but to the north of the then existing boundary between field 237 and 297, and there is no measurement to show how far along the highway that point lies.
10.	The plan and the terms of the conveyance show that Mr Thomas, the vendor, intended to lay out field 237 for the sale of plots for house building.  Mr Mears as purchaser entered into covenants as regards the use of the land and, for example, to contribute his share of the maintenance of the proposed road at C to D (but not A to C) until it was adopted by the local authority.  He also covenanted to erect and maintain fences along the boundaries shown with T marks.  Those that were to be his responsibility were the boundaries with plot 7, with the proposed estate road C to D, and at the western end with the lane.  The boundary with plot 10 was marked as intended to be the responsibility of Plot 10. 
11.	However, the proposed residential development did not proceed.  The proposed estate roads were not laid out.  Whatever may have happened to plots 5, 6 and 7 (it seems they have still not been built on), plot 10 was not sold at this stage, nor were plots 13 and 14.  (There is no clue as to where plots numbered 1 to 4, 11 or 12 may have been, if they existed.)  It may be that, if plot 10 had been sold at or soon after the time of the sale of plots 8 and 9, the problem which has now arisen would not have appeared or, if it had, it would have been easier to resolve.  A lane was laid out along the south-western edge of the land, which provides access to Summerlands Farm.
12.	Mr Mears built one house on the land he had bought, and called it Pinewood, following in that respect a local propensity to favour arboreal names which is apparent from plans of the area, which show Fir Plantation to the west, later called Curdridge Firs, and houses called The Oaks, The Hollies, Little Trees and Tree Cottage.  Pinewood was built before 1926, as the judge found, and the row of pine trees on or near the disputed boundary was also, he held, planted before 1926.
13.	On 21 October 1926 John Boase Thomas (then giving his address as The Poplars, Curdridge) conveyed land on sale to Frederick George Lambourne.  The land so conveyed included part of enclosure 237 (described as pasture) and all of 297.  The plan shows that what was sold included all of field 237 except for what had been marked as plots 5 to 9 on the 1908 conveyance plan.  It did include the site of the two proposed estate roads, and that of the lane, and plot 10.  There seems to be no reason to suppose that the land acquired by Mr Lambourne was not all that was left after the sale off in 1908 to Mr Mears of plots 8 and 9 and presumably other sales of plots 5 to 7.  As a result of that conveyance, wherever Mr Mears’ southern boundary lay, Mr Lambourne owned the land immediately beyond that boundary.
14.	The next stage is more important.  On 30 April 1928 Mr Lambourne conveyed land to Mrs Louisa Jane Lillian Harrison on sale.  The land was defined as:
“All That piece or parcel of land situate in the parish of Curdridge in the County of Hants (forming part of number 237 on the Ordnance Survey Map) having a frontage of Eighty six feet or thereabouts to Lockhams Road and a depth on the northern boundary of One hundred and seventy feet or thereabouts Together with the semi-detached messuage dwellinghouse and premises erected thereon as the property hereby contracted to be sold is for the purpose of identification only and not by way of absolute accuracy delineated and coloured pink on the plan drawn hereon.” 
15.	The plan shows that, by then, both of the semi-detached houses had been built, and what was conveyed was the northern of the two, now called Nirvana, with a boundary dividing it from the other which runs along what I take to be the party wall, and straight on from the line of that wall in both directions, towards and away from the highway.  That is one boundary; the highway provides a second, and the third is shown as a straight line from the highway to the end of the common boundary between Nirvana and Summerlands Cottage, so that the plot conveyed is a triangle.  The dimensions of 86 feet and 170 feet for the second and third boundaries described, taken with the fact that the third boundary runs between the two semi-detached houses, makes it possible to be reasonably certain as to the extent and boundaries of the land conveyed by this transaction.  This enabled the District Judge to make a finding as to the northern boundary of Nirvana which is further south than the Defendants would prefer, but which they are unable to challenge.  It also gives rise to their contention that, if they are right as to where the southern boundary of Pinewood lies, there is a strip of land between the two properties which, logically, must have been left over when Mr Lambourne sold Nirvana to Mrs Harrison.  It may have passed (under the all estate clause) when Mr Lambourne sold the remainder of Summerlands Farm to R E Lambourne in 1944, but its devolution since 1928, or since 1944, must be a matter of speculation.  The District Judge rightly observed that, since there was no acknowledgement for production of the conveyance of 20 August 1907, by which Mr J B Thomas had acquired his title, in the 1926 conveyance, or the 1944 conveyance, or later, it cannot have been thought or intended that any land which had been acquired from Mr Thomas did or should remain undisposed of at that stage.  The plan also shows Mr Mears’ name as the owner of the adjoining land to the north, suggesting that he was still the owner of that land at the time of the conveyance.
16.	In 2002, before the present litigation had begun, the parties instructed a chartered land surveyor, Mr Jonathon Maynard, to inspect and survey the land, and to advise as to the boundary issues.  He surveyed the land in June 2002, and considered documents including the various conveyances to which I have referred.  We have his report dated 8 December 2002, in which he proposed a compromise boundary line, as shown on one of the 11 plans annexed.  He gave further advice in a letter dated 28 February 2003, at the request of Mr Wakeford, with a further four plans annexed.  After proceedings had been brought, he provided a further report, by way of clarification in response to questions from Mr Wakeford’s solicitors, dated 24 October 2007.  He also gave evidence at the trial.  We have a transcript of his oral evidence.
17.	From his observation of the land, he recorded in 2002 that the lane “is bounded by wrought iron fences of considerable age that are approximately 17 feet apart”, of which that on the west continued along the boundary with field 297, and that on the east continued as far as the end of Pinewood, where it bent sharply to the right, to form the north-western boundary of Pinewood.  He noted that in the area of the disputed boundary there is the row of pine trees already mentioned, and no trace of a fence.  In 1926 Summerlands Farm was put up for sale at auction and, in the particulars, it was described as “sub-divided into enclosures by very substantial permanent iron fencing”.  This may, therefore allow an inference that fencing of that kind that Mr Maynard saw in 2002 had been put up by 1926.  By the time of the trial, the fencing on the eastern side of the lane which Mr Maynard had seen in 2002 had been replaced with a different kind of fence, for at least some part of its previous length.
18.	It might be thought that the area stated in the 1908 conveyance would be of assistance.  Mr Maynard explained that, in modern measurements, it equates to 6,534 square yards.  However, he was unable to determine how it was calculated, given the irregularity of the outline of the plot, and his attempts to measure the plot from the 1908 conveyance plan, if rendered as a scale plan, or from the 1965 OS map, or from his own survey, came to different areas, all of them exceeding 6534 square yards by at least 5% and up to 13%, so that he felt unable to place any reliance at all on this aspect of the description.
19.	Mr Maynard’s conclusion in his 2002 report was that the 120 feet dimension in the 1908 conveyance was to be taken from the north side of the lane to Summerlands Farm, that the intended line of that should taken as being as it was later laid out and defined by the iron fencing, that applying the 120 feet measurement from there, the southern boundary of Pinewood would be some 2 feet further north than the northern boundary of Nirvana, (but south of the line of pine trees) but that there was no good reason to suppose that it was intended that a strip should be left unsold between the two properties, that the inaccuracies in the conveyances were such that the 120 feet should not necessarily be taken as exact, and that accordingly he concluded that the better view was that the southern boundary of Pinewood was the same as the northern boundary of Nirvana.  As a compromise he recommended a boundary one foot further north, shown on his Plan 8.  This was the line adopted by the judge as the basis for his declaration of the boundary.  I will refer later to Mr Maynard’s evidence at the trial.
20.	In his judgment, given orally on 18 February 2008, after a review of the background and the nature of the dispute, the judge referred to a number of relevant general propositions in a long paragraph numbered 6.  In the course of this, having rightly directed himself that the task was to interpret correctly the 1908 conveyance, he said:
“The parties’ intentions at the time when the conveyance was executed have to be interpreted in the light of the physical features at the date of execution of the conveyance.  It is of course the fact – and it causes a serious problem – that features on the ground change significantly over the years.  Extrinsic evidence may be admissible if it is probative of what the parties to the original deed intended but, as Mr Glen [Counsel for the Defendant, before the judge as before us] points out, the parties to any subsequent deed which may have a bearing on it or exert a controlling influence on the interpretation of an earlier deed, the parties must be the same.  Present physical features, that is contemporaneous physical features, are relevant if they shed light on the physical features which were present when the deed was made or insofar as they have been replaced by those which can presently be seen. … Sometimes evidence of acts of ownership are admissible in order to establish where the title to the boundary is.” 
21.	In his very long paragraph 8, the judge set out the conveyancing history and commented on it with the benefit of Mr Maynard’s observations and comments.  He said, correctly, that the words in the parcels clause which refer to the plan are self-contradictory (see Neilson v Poole (1969) 20 P&CR 909), so that the plan does not predominate, that it may be of some use but that it is of very poor quality, being a hand-drawn plan of varying scale, so that it is unsafe to rely on it, and that although the 120 foot measurement is relevant, the question as to where it starts from at the southern end is left quite unclear by the plan.
22.	The Defendants argued before the judge, as before us, that the starting point for the 120 foot measurement was the point at which the intended boundary between Plot 10 and the lane met the highway, and that, from the way the lane was shown on the 1908 plan, it could be seen that this was to have been 30 feet away from the boundary between enclosures 237 and 297, because the lane was shown as 30 feet wide.  The judge rejected this contention.  He said, rightly as it seems to me, that the lane was not to be the subject of any right of way for the benefit of any of the plots in the contemplated development, and that it was intended as no more than an access to Summerlands Farm to the west (as the eventual lane became).  The judge then said this:
“There is no evidence at all that it was intended that the lane was 30 feet wide.  The evidence is, as described by Mr Maynard, that the lane was 16 feet 6 inches wide.  The best evidence available is that pointed out by Mr Maynard in his reference to an iron fence, an old fence in place before 1926 and probably intended to replace an earlier demarcation of the boundary.” 
23.	As to that Mr Glen submitted to us that, albeit that the fence could be assumed to have been in existence by 1926, there was no evidence to show that it replaced an earlier fence or other boundary feature, and certainly not that it succeeded something that was in place in 1908.  On the contrary, the available evidence suggests that the lane did not exist in 1908, and therefore that there was then no boundary feature for which the iron fence could be taken to be a substitute or replacement.  He also submitted that the judge was not correct to say that there was no evidence of an intention that the lane should be 30 feet wide: the plan is such evidence, Mr Maynard accepting that, if the width of the lane was taken from it by scaling, it could be seen to be 30 feet wide, or even more at some points.
24.	The judge rejected the Defendants’ contention, based on starting at the boundary between enclosure 297 at the lane, measuring 30 feet from there and then another 120 feet, and said that it seemed to him “to involve pure conjecture or speculation from a hand-drawn inaccurate plan”.  The Defendants contended that the pine trees in the area of the boundary had been planted by a Mr Bosch, then the owner of Summerlands Farm, before 1926, and that it therefore followed that they were planted on land which was still in the same ownership as Summerlands Farm, and not within what had been sold to Mr Mears in 1908.   One difficulty with that was to identify who Mr Bosch may have been, since it is known, from the conveyancing history, that Summerlands Farm remained in the ownership of Mr J B Thomas from 1907 until 1926.  There seems to be little basis for an inference that the trees were planted by the owner of Summerlands Farm.  They would not have been planted at any time when it was contemplated that plot 10 might be sold off for building.  We do not know at what stage the idea of such a sale was abandoned, but after that point it seems likely that the status of plot 10, for the owner of Summerlands Farm, was as a little residue of land forming part of an estate of over 35 acres, as to which there is no particular reason to suppose that it had any special importance.
25.	The judge pointed out that, on the Defendants’ contention, part of Summerlands Cottage would have been built on land which properly formed part of the lane, which was inherently unlikely.  As regards who had planted the pine trees, he said, later, that he thought it “much more likely that the claimants’ case is correct, that these pine trees were planted by the owner of Pinewood at some time as an act of ownership”.  He felt supported in that by the observation that there are such pine trees along the other boundaries of Pinewood as well, which must have been planted by the owner for the time being of that property.
26.	He concluded that, taking the Defendants’ case at the most favourable to them, the southern boundary of Pinewood starts 120 feet along the highway from the point at which the fencing on the north-east of the lane meets the highway, which would take it to a point 2 feet north of what appears to be the northern boundary of Nirvana, according to the 86 feet measurement, but still to the south of the pine trees.  After rejecting the Defendants’ claim to have acquired title by adverse possession to any land, he considered the claimants’ position which was to ask for a declaration that their southern boundary was Mr Maynard’s proposed compromise boundary, rather than the line a foot further south that resulted from his conclusion reached from the materials to which I have referred.
27.	On behalf of the Defendants, in his well-focussed oral submissions to us, Mr Glen criticised the judge’s conclusion on two particular bases: first for rejecting the 30 feet plus 120 feet thesis on the incorrect basis that there was nothing to support the 30 foot measurement, and secondly for relying on inadmissible material subsequent to the conveyance, above all the 1928 conveyance, but also the position of the fencing along the lane.
28.	Mr Glen relies among other things on evidence given by Mr Maynard at the trial.  He was cross-examined to good effect, from the Defendants’ point of view, about what could be inferred from the 1908 plan, and in particular the width of the lane, accepting that this was wanted to provide vehicular access between Summerlands Farm and the highway.  He accepted that, given an apparent connection between the proposed estate road C to D and the lane, there was no reason to suppose that the vendor would have reserved to himself an inferior access to the highway to those that he was providing for the owners of the plots by way of the estate roads, which were rights of way over roads 30 feet wide.  (He reiterated this point, in substance, in re-examination.)  He accepted that, if the 1908 conveyance plan were applied directly to the land, the southern boundary would start, at the south-eastern end (by the highway) just south of what is now the line of the pine trees, but would otherwise run in a more northerly direction than the pine trees do and would for the most part lie to the north of them.  He also accepted that, if the area stated in the 1908 conveyance were correct, then the southern boundary would lie to the north of the trees, and he also accepted that, measuring 30 feet from the boundary between the lane and enclosure 297 and then a further 120 feet, one would reach a point to the north of the trees.  He accepted, in turn, on the basis of the 1908 plan and conveyance, that if he had been measuring the land out in 1909, before any other features were added to those that had existed on the date of the conveyance, he would get to a point just to the south of the trees, at the highway, but with the boundary, if following the 1908 plan, continuing westwards, mostly north (and increasingly far north) of the trees.
29.	Mr Glen therefore submitted that the case poses starkly a question of law, in that the 1908 conveyance, including its plan, taken in the light of what is known about the state of the land at the time (from the 1909 Ordnance Survey and the abstract plan), leads to a conclusion that the southern boundary of what was then conveyed lies (mostly) to the north of the line of pine trees planted later, and in a rather different direction from the line of those trees, and the only basis for reaching a different conclusion involves reliance on later matters, of debatable admissibility and (if admissible at all) probative value.
30.	In Ali v Lane [2006] EWCA Civ 1532 the Court of Appeal had occasion to review the law as to the admissibility of later matters in construing a conveyance.  In Neilson v Poole (cited above) Megarry J had said:
“… in the construction of the parcels clause of a conveyance and the ascertainment of a boundary the court is under strong pressure to produce a decisive result.  The prime function of a conveyance is to convey.  As to any particular parcel of land, either the conveyance conveys it, or it does not; the boundary between what is conveyed and what is not conveyed must therefore be proclaimed.  The court cannot simply say that the boundaries are uncertain, and leave the plot conveyed fuzzy at the edges, as it were.  Yet modern conveyances are all too often indefinite or contradictory in their parcels.  In such circumstances, to reject any evidence afforded by what the common vendor has done in subsequent conveyances seems to me to require justification by some convincing ground of judicial policy; and I have heard none.” (p 915)
31.	More recently, in Clarke v O’Keefe (1997) 80 P&CR 126, 133 Peter Gibson LJ in the Court of Appeal said: 
“It was said, as long ago as 1969, by no less an authority than Megarry J in Neilson v Poole, that the then modern tendency was towards admitting evidence in boundary disputes and assessing the weight of that evidence rather than excluding it.  That tendency has, in my experience, not diminished in the intervening years.” 
32.	As regards subsequent conduct, in particular, whereas in the law of contract generally it is well established as inadmissible in relation to ascertaining the intention of the parties, as manifested by the documents (see L Schuler AG v Wickman Machine Tools Sales Limited [1974] AC 235), there is authority which supports its admissibility in relation to the construction of a conveyance of land.  It is true that the primary case, in the Privy Council, Watcham v Attorney General of East Africa Protectorate [1919] AC 533, has been much criticised, in particular by Peter Gibson LJ in the Court of Appeal in Beale v Harvey [2004] 2 P&CR 18.  However in Ali v Lane Carnwath LJ pointed out that Peter Gibson LJ’s comments in that case did not take account of a number of other authoritative references to Watcham and to the point generally.  He stated his conclusion in paragraph 36, and elaborated on it in the succeeding two paragraphs, as follows: 
“36.	The conclusion I would be inclined to draw from this review is that Watcham remains good law within the narrow limits of what it decided.  In the context of a conveyance of land, where the information contained in the conveyance is unclear or ambiguous, it is permissible to have regard to extraneous evidence, including evidence of subsequent conduct, subject always to that evidence being of probative value in determining what the parties intended. 
37.	The qualification is crucial.  When one speaks of “probative value” it is important to be clear what needs to be proved.   In this case the issue concerns the line of a boundary which was fixed not later than 1947.  Evidence of physical features which were in existence in the 1970s is of no relevance to that unless there is some reason to think that they were in existence in 1947, or they are replacements of, or otherwise related, to physical features which were in existence in 1947.   Similarly, evidence of Mr Attridge Senior’s understanding of the position of the boundary, or actions by him apparently relating to that boundary, is of limited probative value, even if admissible.  Such evidence begs the questions whether his understanding of the boundary was well-founded, and if so how strict he was in observing it, particularly having regard to the disused state of the disputed land during that period. 
38.	I would add that in principle reference to the intentions of the parties means the parties to the original conveyance.  Thus in Watcham the user relied on by the Privy Council was that of the Watcham family, who were the beneficiaries of the original certificate.  In none of the cases reviewed above was account taken of the conduct of subsequent owners.  Megarry J might possibly have been willing to go further.  Where the evidence of the intentions of the original parties is unclear, long and unchallenged usage may, as he said, be 
“… good reason for tending to construe the (original) conveyance as having done what the parties appear to have treated it as having done…” 
I do not read that as necessarily confined to long usage by the original parties.  We need not decide whether that is a permissible extension of the Watcham principle.  It would only apply if there were evidence of a long period of acceptance of a specific boundary by a succession of parties on both sides of the boundary.  That is not this case.  The unilateral actions of the owner of one side (in this case Mr Attridge) could not be relied on as binding on the owner of the other.” 
Ali v Lane was followed in Haycocks v Neville [2007] EWCA Civ 28 and in Bradford v Keith James [2008] EWCA Civ 837.
33.	Mr Glen submitted that Ali v Lane gives no assistance to the Respondent, since there is no subsequent evidence which can allow an inference of any physical features on the land in 1908 which would assist their case, the 1928 conveyance does not involve either of the parties to the 1908 conveyance, and there is nothing else of any probative value which can safely be attributed to either of those parties.
34.	For the Respondents, Mr Bromilow argued that neither his case nor the judge’s decision depended in any way on the 1928 conveyance.  He did rely on subsequent conduct, but conduct of one or other of the parties to the 1908 conveyance: the planting of the pine trees by (he submitted) Mr Mears and the erection of the fence by (he submitted) Mr Thomas.  
35.	He argued that, even though the fence along the eastern side of the lane did not exist in 1908, and no equivalent feature existed at that time, the act of erecting that fence, on the part of Mr Thomas, at some time between 1908 and 1926, was an admissible indication of his intention as it had been in 1908 as regards the width of the lane shown on the 1908 plan.  Moreover, as regards the position of that fence farther than 200 feet west of the highway, it represented the boundary between Mr Mears’ property and the lane, so that Mr Thomas’ act affected Mr Mears at that time as well.  It defined the boundary of Pinewood, at that point, as well as that of the lane.
36.	Correspondingly, he argued that the right inference as to the planting of the pine trees was that drawn by the judge, namely that they were planted by the owner of Pinewood, as an act of ownership, to run along his boundary, just as he planted such trees along others of the boundaries of his land.  In relation to that submission the passage at paragraph 37 in Carnwath LJ’s judgment in Ali v Lane, quoted above, might be thought to be relevant, as to whether the owner’s understanding of the boundary was well-founded, and if so how strict he was in observing it.  Mr Attridge senior, referred to in that passage, was not a party to the relevant conveyance, but only a successor in title.  But even in relation to one of the parties to the conveyance a question might arise as to the probative value of subsequent acts, depending on their nature, the length of time between the transaction and the conduct, and the circumstances in which the acts relied on were done.
37.	In my judgment Mr Bromilow was entitled to place reliance on these two matters, as was the judge.  I agree with Mr Glen that the judge was wrong to say that there was no evidence in support of a width of thirty feet as having been intended for the lane, and that he was also wrong to say that the fence replaced a feature existing in 1908.  However, I do not accept that Mr Maynard’s evidence at trial compels a decision in the Defendants’ favour.  In particular, I disagree with the observation that, because of an intended interconnection between the lane and the proposed estate roads, it should be assumed that the lane was intended to be of the same width as the estate roads.  The marking on the 1908 plan suggests that it might well not have been intended that traffic from the estate roads could pass over the lane, and no right of way to that effect was granted by the conveyance.  If such traffic was to be prevented from having that access, it would likely to be by way of a barrier of some kind which would also prevent access the other way.  That would therefore leave only the fact that the lane is indicated on the plan as being of comparable width to the estate roads.  Given that the plan was not expressed to be to scale, and was not in fact to a consistent scale, as Mr Maynard explained, it seems to me that this is very fragile support indeed for an intended width of thirty feet for the lane.  
38.	Mr Maynard’s evidence as to the difficulty of reconciling the measurement of the area stated in the 1908 conveyance with the results of his survey and observations entitled the judge not to be guided by the stated area as part of the description of the land conveyed.
39.	In my judgment, the district judge was entitled to infer that the fence was put up by or on behalf of Mr Thomas at a distance of some 17 feet or thereabouts from the boundary with enclosure 297, no later than 1926.  The fence so erected defined, in practical terms, not only the width of the lane but also part of the boundary between Mr Thomas’ retained land and that sold to Mr Mears.  It seems to me that this has probative value as a significant indication that the lane was not intended to be of a width of 30 feet, but only of a width of the order of that with which it was in fact created.  The judge’s reference to the fence having probably been intended to replace an earlier demarcation of the boundary does not, in my view, detract from the force of the inference which can be drawn as to the significance of the position of the fence, nor from the judge’s reliance on the position of the fence as evidence of the intention of the parties to the 1908 conveyance.  
40.	It is not disputed that the judge was entitled to find that the owner of Pinewood had planted the row of pine trees in the area of his southern boundary, at some time between 1908 and 1926.  At that time the owner of the land on the far side of the southern boundary from Pinewood was Mr Thomas, the other party to the 1908 conveyance.  In my judgment the judge was entitled to treat this fact, as he did, as evidence that the boundary was intended by the parties to the conveyance to lie to the south of the position in which the pine trees were planted.  Neither as regards the pine trees, planted where they were by Mr Mears, nor as regards the fence, placed in position by Mr Thomas, is there any indication that the other party, then the owner of the land the other side of the relevant part of the boundary, ever questioned or challenged the act in question.
41.	Mr Glen pointed out that the Claimants did not assert an adverse possession title to any land on the basis of the planting of the trees, or any acts done by them or their predecessors in title, but Mr Bromilow correctly responded that this was not necessary unless and until their position was challenged by someone with a better title than themselves, and the Defendants are not in that position.
42.	For those reasons, in my judgment, the district judge reached a conclusion to which he was entitled to come, based only on admissible evidence, and I consider that he was right to reject the theory that the starting point for the 120 feet measurement was thirty feet along the highway from the boundary with enclosure 297, in favour of a point no more than some 17 feet or thereabouts north-east of that boundary.
43.	As I have mentioned, what is before us is an application for permission to appeal, with the appeal to follow.  Given that the Defendants do not assert that, if they are right as to the position of the Claimants’ southern boundary, they are the owners of the land immediately abutting the Claimants’ land, there could have been a case for dismissing the application for permission to appeal because they do not have a sufficient interest in the issue, and the party who might have such an interest is not before the court.  In another case that might be the right course to have taken.  However, since the matter has been argued fully, it seems to me that the better course now is to grant permission to appeal, but to dismiss the appeal on the basis that the judge’s decision was one which he was entitled to make, based on the findings of fact which he made.
Lord Justice Rimer
44.	I agree.
Lord Justice Ward
45.	I also agree.