Extrinsic evidence

Pennock and another v Hodgson [2010] EWCA Civ 873; SJ 3 August p33

The parties had bought properties from a common vendor and each believed at the time that a stream separating the properties belonged to them. The conveyance to the defendant, which was the first in time, provided that the boundary belonged to the land later bought by the claimants and attached a plan showing the position of the stream and the edges of the two properties abutting the stream. At the time of that conveyance there had been a fence running alongside the stream on the land later bought by the claimants. The claimants now wished to build a stone wall on their side of the stream to which the defendant objected. The judge, relying on evidence of the physical feature of the land at the date of that conveyance, including the fence, held that the position of the fence would have been considered by a reasonable person to be the boundary line of the property conveyed to the defendant and that the stream and land up to the fence belonged to her. The claimant appealed on the grounds that the judge had been influenced by inadmissible evidence of the defendant’s subjective belief at the time of the conveyance as to the extent of land conveyed and the boundary position, and that he should not have looked outside the conveyance in order to ascertain the boundary because there was no ambiguity in the presence and position of the stream shown as a boundary feature on the plan.