Boundary Dispute Case Law Burns v Morton
Boundary Dispute Case Law Burns v Morton - like many disputes between neighbours this case turns on nuanced legal interpretations and factual developments over time.
The Court of Appeal decision in Burns v Morton (2000) offers valuable guidance on implied boundary agreements and the legal effect of alterations to physical boundaries.
It provides an authoritative example of how the courts interpret conveyance clauses, boundary markers, and neighbourly conduct in determining land ownership and trespass.
Background - Boundary Dispute Case Law Burns v Morton
In Burns v Morton, the plaintiffs (Robert and Doreen Burns) and the defendant (Edward Morton) owned neighbouring properties at Nos. 5 and 4 Orchard Gardens, Whitburn, Tyne and Wear.
Originally, both plots were part of a single holding conveyed by a common vendor in the 1960s. The legal conflict arose over the ownership of a narrow strip of land and the rights concerning a Leylandii hedge planted near a boundary wall.
The 1965 and 1967 Conveyances
The plaintiff’s property was first conveyed in 1965 to a Mrs. Hall. Clause 4 of that conveyance declared that the dividing garden walls or fences on the north and south sides were to be "party walls or fences," each half built on the respective neighbouring properties.
In 1967, the conveyance of the defendant’s property included an almost identical clause requiring the same arrangement for any dividing structures.
Development of the Boundary Fence
Both parties accepted the wooden fence erected along the boundary between the two properties as a dividing and party fence. In 1977, Edward Morton bought No. 4. Two years later, in 1979, he removed the existing fence and built a new wall, located approximately six to nine inches inside his property — behind the original fence line.
The wall’s placement meant that a small strip of land, previously part of Morton’s title, now lay between the original boundary and the new wall. Mr. Morton did not consult his neighbours before undertaking this construction. The then owners of No. 5, Mr. and Mrs. Noble, subsequently planted a Leylandii hedge just on their side of the new wall.
Dispute Emerges
In 1990, the plaintiffs purchased No. 5. In the years that followed, tensions arose over the hedge. Mr. Morton, claiming the hedge encroached on his land, pruned it. The Burns accused him of trespass and issued proceedings seeking damages, an injunction, and a declaration as to the correct boundary.
The County Court Decision
The trial judge, Judge Wood, ruled in favour of the plaintiffs. He found that by removing the fence and building the wall slightly within his own land, Mr. Morton had—through implied agreement—redefined the boundary between the properties. Accordingly, the strip of land between the original fence line and the new wall had transferred to the plaintiffs.
Judge Wood held that:
- The original fence had functioned as a party structure and the physical boundary.
- The 1979 wall was intended, and accepted by the neighbours, as the new boundary and a party wall.
- The Leylandii trees were planted on the plaintiffs’ side of the wall.
- Mr. Morton had trespassed by pruning the trees without lawful justification.
The Court awarded £482 in damages and issued an injunction to restrain further trespass.
The Appeal
Edward Morton appealed, arguing that:
- The judge erred in law by treating the wall as altering the legal boundary.
- A wall wholly built on his own land could not function as a party wall under the terms of the conveyances.
- No formal agreement or deed had been executed to transfer the strip of land.
- The judge’s finding on trespass contradicted his earlier recognition that the trees had grown close to the original boundary line.
- The right of abatement (self-help in trimming encroaching vegetation) had been wrongly denied.
The Court of Appeal Judgment
Swinton Thomas LJ (with whom Tuckey LJ agreed) dismissed the appeal.
The Court found that although Mr. Morton had built the wall slightly inside his boundary, the surrounding circumstances and conduct of the adjoining owners created an implied agreement to treat the wall as the new boundary.
Key Legal Findings - Boundary Dispute Case Law Burns v Morton
1. Conveyance Language as Indicator of Intention: Both conveyances described dividing structures as “party walls or fences.” This language indicated that the parties intended such structures to mark the physical boundary and to reflect shared responsibility for maintenance.
2. Implied Boundary Agreement: The Court accepted that Mr. Morton’s act of constructing a new wall and the Nobles' subsequent acceptance of it — including the planting of the hedge close to it — amounted to an implied agreement. Even though no express agreement was made, the conduct was enough to legally recognise the new boundary.
3. Transfer of Land by Conduct: Although no formal deed had been executed, the Court held that an implied boundary agreement, combined with the wording of the conveyances, was sufficient to transfer the narrow strip of land between the old fence and the new wall to No. 5.
4. Wall as Party Wall: By reference to Neilson v Poole [1969] 20 P&CR 909 and Watson v Gray (1880) 14 Ch D 192, the Court held that the 1979 wall functioned as a party wall in the same sense as the original fence. It was accepted and used as such, and its physical position did not undermine its legal function.
5. Trespass Confirmed: Since the hedge lay within the plaintiffs’ land (due to the boundary change), the defendant had no right to interfere with it. His action in pruning the trees constituted trespass, and the remedy of abatement was not available in this case.
Key Takeaways - Boundary Dispute Case Law Burns v Morton
1. Boundary Agreements Can Be Implied: Even where a boundary line moves slightly, conduct by neighbours can amount to a binding implied agreement — particularly when consistent with prior conveyance terms.
2. Wording in Conveyances Matters: Descriptions of party walls and fences in conveyances can play a decisive role in interpreting property boundaries when maps and plans are unclear.
3. Unilateral Construction May Lead to Boundary Shifts: If one neighbour builds a new wall slightly inward and the other treats it as the new boundary, the law may treat that as an agreed boundary change.
4. Trespass Includes Airspace and Vegetation: Pruning overhanging branches or foliage may constitute trespass if the encroaching vegetation stands entirely within the neighbour’s boundary.
5. Court Upholds Practical Resolutions: The Court of Appeal favoured a practical resolution consistent with the historical conduct of the parties and the realities on the ground.
Conclusion
The judgment in Burns v Morton reinforces the importance of mutual understanding and consistent conduct in boundary matters.
It demonstrates how informal actions—such as moving a fence line or accepting a wall’s location—can lead to legal consequences through implied agreements. Surveyors, conveyancers, and property owners should take careful note of how physical changes and neighbourly behaviour may alter the legal landscape.
For professionals handling boundary disputes, this case underscores the value of clear records, open communication, and consideration of long-term consequences when altering boundary structures.
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Geoffrey Adams
BEng (Hons) PgDip FRICS
Senior Director
Party Walls
London
Rickie Bloom
BSc (Hons) MRICS
Senior Director
Party Walls
London