Underwood & Anor v Mayers & Anor
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
- LORD JUSTICE RICHARDS
- LORD JUSTICE BRIGGS
Areas of Law
- Civil Procedure
- Evidence Law
- Property and Real Estate Law
2014
COURT OF APPEAL (CRIMINAL DIVISION)
United Kingdom
CORAM
AI Generated Summary
In the Court of Appeal, Lord Justice Briggs delivered the lead judgment in a neighbor boundary and drainage dispute between Mr. and Mrs. Underwood (owners of 73 Harrington Road) and Mr. Mayers and Ms. Smith (owners of 71 Harrington Road) in Rothwell. After a five-day county court trial, the Underwoods largely prevailed on the boundary issue and completely on the drainage issue. On appeal, the Defendants were permitted to adduce fresh photographic evidence challenging a key factual finding: the existence of a substantial elm tree at the boundary in 1969. Responsive witness evidence was admitted. Because resolving the new factual controversy required cross-examination, the Court of Appeal remitted the boundary dispute for re-trial. The drainage appeal was dismissed, as the trial judge’s inspection-based findings were better placed and unaffected by the new evidence. On costs, the Defendants obtained a partial victory, with 75% of their appeal costs ordered payable by the Claimants, and trial costs reserved to the re-trial judge.
Judgment
Lord Justice Briggs :
This is an appeal against the Order of Mr. Recorder Jack made in the Northampton County Court on 19 th June 2013, at the end of the five-day trial of a boundary dispute between the owners of adjacent residential properties in Rothwell known respectively as 71 and 73 Harrington Road (“Number 71 and Number 73”). The Claimants, Mr. and Mrs. Underwood, are the owners of Number 73. The Defendants (and Appellants in this appeal), Mr. Mayers and Ms. Smith, are the owners of Number 71.
The main issue between the parties at trial consisted of competing claims to the ownership of a thin wedge-shaped piece of land having a maximum width of three feet at the Harrington Road end of the boundary between the two properties and tapering to an agreed point about two thirds of the way along the boundary towards the rear of the properties. The dispute might have been about so small a piece of land to have been inconsequential, against the hundreds of thousands of pounds of costs incurred in litigating about it by the end of the trial, were it not perhaps for the fact that success for the Underwoods would have established a right to a narrow passage alongside the garage erected at the side of Number 73, which they said had been obstructed by the Defendants and/or their predecessors in title to Number 71. I will call it “the three foot strip”. By contrast the Defendants’ case was that the three foot strip fell entirely, or almost entirely, on their side of the common boundary.
The other quite separate and distinct issue in the proceedings consisted of a claim by the Underwoods to a drainage easement through an underground pipe crossing the common boundary, serving a side extension built at Number 73, and connecting beneath a manhole cover with a drainage system installed at Number 71, just on its side of the disputed common boundary. The drainage issue was first raised by the Defendants’ counter-claim for trespass in the proceedings.
The Claimants were substantially, but not wholly, successful at trial in relationship to the boundary dispute. Their fallback case was that the boundary ran along what the judge called in his judgment the “Coombs line”, which gave them rather more than half the disputed strip. The Claimants were entirely successful in relation to the drainage issue. As a result, the judge ordered the Defendants to pay the Claimants two thirds of their costs.
The Defendants appealed, on both issues. At the same time as they obta