Herbert v Pegrum & Anor [2005] EWCA Civ 120 (31 January 2005)

Herbert v Pegrum & Anor [2005] EWCA Civ 120 (31 January 2005)

The words of clause 2 of the 1931 conveyance did not amount to a clear indication that the whole of the stream was conveyed to the claimant's predecessor; thus, the judge's finding of estoppel was incorrect and the appeal on that point was allowed. The findings of fact regarding the physical boundary were not open...

Source-derived case information.

Citation
[2005] EWCA Civ 120
Parties
Claimant/respondent: Gwendoline Elsie Herbert; First Defendant: Susan Elizabeth Pegrum; Second Defendant/applicant: James Waring Pegrum
Jurisdiction
England and Wales
Judgment Date
31 January 2005
Procedural Posture
Civil Appeal / Permission to Appeal Out of Time and Substantive Appeal
Outcome
Appeal allowed in part; permission to appeal granted on estoppel issue, refused on factual issues.
Legal Topics
Boundary Disputes, Estoppel, Conveyancing, Appeals Procedure
Property Law Civil Procedure Boundary Disputes Estoppel Conveyancing Appeals Procedure

Source-derived case record

Summary, issues, holding and outcome

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Parties

Gwendoline Elsie Herbert

Claimant/respondent

Susan Elizabeth Pegrum

First Defendant

James Waring Pegrum

Second Defendant/applicant

Procedural Posture

Civil Appeal / Permission to Appeal Out of Time and Substantive Appeal

Legal Issues

  1. 1 Whether the judge erred in finding an estoppel affecting the boundary location based on the 1931 conveyance
  2. 2 Whether the judge's findings of fact regarding the physical boundary were correct

Ratio Decidendi

The words of clause 2 of the 1931 conveyance did not amount to a clear indication that the whole of the stream was conveyed to the claimant's predecessor; thus, the judge's finding of estoppel was incorrect and the appeal on that point was allowed. The findings of fact regarding the physical boundary were not open to appeal as no sufficient basis was shown to interfere with the trial judge's conclusions.

Court Disposition

Appeal allowed in part; permission to appeal granted on estoppel issue, refused on factual issues.

Orders

  • Permission to appeal granted and appeal allowed on the estoppel issue.
  • Permission to appeal refused on the issues of fact.