Burns and another v Morton

CA 27 May 1999. In 1965 a plot of land was conveyed to the plaintiff's predecessor (B) in title. The conveyance contained a provision that the division garden wall or fence forming the boundary between the two plots was to be a party wall or fence to be erected "as to one half of the thickness thereof on the property hereby conveyed and as to the other half thereof on the adjoining land now or formerly as to the other half thereof on the adjoining land now or formerly of the vendor." In 1967 the adjoining plot was conveyed to the defendant's predecessor (M) in title by a conveyance which contained a similar provision. A fence was erected along the boundary line between the two plots and became a dividing fence and a party fence. M purchased his property in 1977 and in 1979 he removed the fence and built a wall in its place about six inches on his side of the fence which had previously demarcated the boundary line. B's predecessors thereafter planted leylandii trees on their side of, but very close to, the wall. In 1990 B purchased their property. Disputes arose concerning the Leylandii trees. M claimed that the trees encroached on their land and clipped and pruned them. B claimed that M had entered their land without permission to carry out those works and brought an action for trespass. The judge held that the boundary between the properties had by implied agreement in 1979 been altered so that the new wall had become a party wall demarcating the boundary and awarded damages for trespass. Appeal dismissed.