Higson & Anor v Guenault & Anor

Judgment

Lord Justice Aikens :

I. The case so far.

This appeal concerns two orders of DJ Forrester made in the Lancaster County court on 2 May 2013 and 24 September 2013. It relates to the boundary of a right of way along a narrow track. The area of land in dispute is very small, measuring only about 6 inches wide and some yards in length. As Mummery LJ said in Pennock v Hodgson, [2010] EWCA Civ 873 at [46] in the case of boundary disputes, particularly on appeal, the unfortunate consequences are that, in the absence of any compromise, someone wins, someone loses, it always costs a lot of money and usually generates a lot of ill-feeling that does not end with the litigation. None of those things are good for neighbours. This case is no exception.

The appellants, Mr and Mrs Higson, own a house and garden at 11 Barton Road, Lancaster. I will refer to them as “the Higsons” and their property as “the Higsons’ property” or “11 Barton Road”. The respondents are representative members of the Bowerham Lawn Tennis Club. For convenience I will refer to the respondents as “the Club”. The Club has its grounds at the end of the narrow track which runs from Barton Road alongside the Higsons’ property and then over a bridge across a brook or beck, called Burrow Beck. The track, which was called “the lane” in the hearings before the judge and before us is just about wide enough for a largish lorry to pass down to the grounds of the Club the other side of the beck. The bridge was widened, at the Club’s expense, in 2009. The disputed boundary is on the south side of this lane, next to 11 Barton Road. The lane is about 32 metres long overall. On the lane there is access to the Higsons’ property at the end nearest Barton Road.

There is an abutment of about a foot’s width at the south western end of the bridge over the beck. Attached to that abutment is the eastern end of a larch lap fence of substantial construction mounted on concrete posts which the Higsons erected in 2004, which I will call “the 2004 fence” in order to distinguish it from another, temporary fence, which had been erected in approximately the same position in 1997. For reasons I will explain I will call the earlier fence “the Peill fence”. The abutment is now entirely inside the line of the 2004 fence. The 2004 fence runs on the outside, ie. the north side, of a hedge that itself lies between the Higsons’ property and the lane on the lane’s south side. The judge found, on the evidence, that this hed