Phillip v Phillip

• Jurisdiction: Anguilla
• Judge: Moe, J.A.
• Judgment Date: 24 April 1989
• Neutral Citation: AI 1989 CA 1
• Docket Number: Civil Appeal No. 3 of 1986
• Court: Court of Appeal (Anguilla)
• Date: 24 April 1989

Court of Appeal

Robotham, C.J., Bishop, J.A., Moe J.A.

Civil Appeal No. 3 of 1986

Phillip

and

Phillip

Mr. F. Kelsick for the appellant

Miss M. Walwyn for the respondent

Real property - Boundary — Whether High Court decision setting aside finding of Adjudication Officer should be interfered with.

Moe, J.A.

1 This appeal concerns a common boundary line between lands oz the appellant, Lot 19, and the respondent, Lot 20, that is the Eastern boundary of the appellant'slot or Western boundary of the respondent's. In a decision given on the 30th June 1976, the Adjudicating officer found that the boundary is a 6 foot path which appears on the land and runs Northward and found during a Cadastral survey. On appeal therefrom to the High Court, the learned Judge set that decision aside having found that the common boundary line is a road now covered in bushes and lying to the West of the said 6 foot path.

2 In a written judgment the learned judge pointed out “it is accepted by the respondent (Olive Phillip) that the boundaries of the land by the appellant (Albear Phillip) is described in the Deed, Exhibit “A.P.1” and it is on the description of the Western boundary in the said deed that the Adjudicating Officer came to his decision”. In consideration of the deed the learned Judge referred to its execution “1889” and the statement as to the Western boundary of the lot concerned which is “a right of way road West of the Water Ground Bottom leading to Shoal Bay which then goes East with the range”. She took the view that when that statement as to the right of way road was made in 1889 when the land was being sold to the predecessor of the respondent, reference was being made to a right of way road then in existence. It could not have been to the 6 foot path which was made only after the respondent'spredecessor acquired the lot and made the path for his own convenience. She expressed herself this way: “As I said before this deed was executed in 1889. The appellant (Albear) knew that his father built a road and that is the road respondent (Olive) is saying is the Western boundary. The Western boundary according to the deed was there in 1889 and it must have been there before the 6 foot path was built. There is no evidence to the contrary. The right of way road at that time could only be the road dividing Water Ground and New Ground which must be assumed was being used by both owners and therefore became a right of way and in my view must be the disputed line shown on Exhibit “C1” and is “the bound west” that is, the Western boundary, and cannot be the track or 6 foot path”.

3 The burden, of the six grounds of appeal filed against the decision is that it is totally unsupported by the evidence or as counsel for the appellant put it during argument there is no evidence to support the decision.

4 Counsel for the appellant contended this way: The appellant Albear'scase was based on the deed made in 1889 in which the relevant boundary is set out. As the learned judge said the Court'sduty was to find from the evidence before it “where this public right of way was in 1889”. The burden was on Albear to show where the road was. Counsel pointed to two strictures levelled by the judge against the appellant. She stated: “I accept the appellant was of very little assistance in the boundaries he gave and it was indeed very difficult to obtain the boundaries from the mouth of the appellant”. Counsel submitted that if there was a main road as claimed by the respondent Albear and such as found by the learned judge, when the surveyor went on the lands, the main road would have been shown on the survey plan. He referred to the surveyor'splan on which Xs are marked on a line indicating the western boundary or right of way road claimed by the respondent Albear and the evidence from the surveyor that (i) “No footpath going north at the line where Xs are”; (ii) “What plaintiff (Albear) claims on Exhibit A.P.2” is considerably West of what is marked as the disputed area in Exhibit “CN.1”. Before the learned Judge Albear had indicated by markings in red the land which he claims lies between the 6 foot path and the main road and belongs to him. Counsel at the close of his submission strenuously contended that the effect of the learned judge'sdecision is to move a boundary established by the Adjudicating Officer to an illusionary boundary not pointed out to the surveyor nor in respect of which there were no marks on the ground and gives Albear what he did not claim. He urged that the matter be sent back for retrial and that the surveyor should find where the public road was.

5 Was the...