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    On the proper application of an indenture to the original conveyance of certain neighbouring properties it was apparent that the boundary between the properties lay along the centre line of the party wall so that a wall and railings constructed to the left of the centre line belonged to the appellant.
    The appellant (B), a residential property owner, appealed against a judgment settling the boundary of his property and the property of his respondent neighbours (W). B and W occupied adjoining houses with steps leading up to them. An elevated area between the houses was divided by a wall with railings on top. That wall was built slightly to the left of the centre line of a party wall which lay underneath, and was thereby on B’s side. After they were unable to agree on a colour to paint the railings, the parties disputed where, along the wall, the precise position of the boundary lay. An indenture to the original conveyance from the time that the properties were built stated in a particular clause that “all walls dividing and separating the respective houses and … shall be placed equally on the ground of the respective proprietors of the adjoining houses or ground and shall at all times be considered and deemed party walls”. The parties were unable to resolve their dispute between themselves. A county court judge held that, having regard to common sense and safety considerations, she was satisfied that the disputed wall and railings belonged to W’s property. The judge found that, having regard to the indenture, it would have been surprising if the parties to the indenture had envisaged different ownership of the railings on the two sides of the landing area in front of the main door of a house. B contended that the judge erred by failing to apply the terms of the indenture properly and that the judge’s boundary line improperly involved a kink in both the horizontal and the vertical plane of the line of division.

    HELD: The view formed by the judge did not accord with the terms of the indenture when applied to the location of the party wall and the disputed wall and railings. It was clear from the indenture that the boundary between the properties lay along the centre line of the party wall of the two houses. That which was to the left of the centre line was within the title of B, and as the disputed wall and railings were to the left they were clearly within B’s freehold title. Further the judge’s decision produced a line of division which was not vertical, with the result that a flying freehold was created, which was something which, whilst a legal possibility in general, was not commendable to the court on the evidence of the instant case.

    Appeal allowed
    Bowler v Wallis & Anor (2010)
    CA (Civ Div) (Arden LJ, Stanley Burnton LJ, Morgan J) 19/5/2010
    “Lawtel”: 24.5.10