Partner John Dingle in our Commercial Property team, looks at a recent Court of Appeal case illustrated the application of the “hedge and ditch rule” in the context of a boundary dispute.
What is the hedge and ditch rule?
Where two properties are divided by a hedge and a ditch (or a bank and ditch) there is a presumption that the boundary runs along the far side of the ditch from the hedge or bank.
The presumption is actually really two presumptions:
That the ditch was dug after the boundary was created.
That a landowner would cut a ditch at the very edge of their land, throwing the soil back onto their own land to form a bank on which to possibly plant a hedge.
The presumption may be rebutted in certain cases. If, for example, the ditch and hedge/bank were in common ownership at the time they were created (thereby not being created on a landowner’s boundary) or if evidence was available that the ditch has been naturally created (suggesting again that it was not created to delineate a boundary) then it may be possible to rebut the presumption that the boundary runs along the far side of the ditch.
What is the general boundaries rule?
As the exact line of a legal boundary is often left unclear in a legal conveyance, many Land Registry title plans are prepared under what is referred to as the “general boundaries rule”. The rule means that the precise line of the boundary of a property will be left undetermined by the Land Registry unless an application is made for the exact boundary line to be fixed (via a thorough examination of the property and a detailed survey). In fixing the exact boundary line, inferences may be drawn from existing topographical features, which may bring the hedge and ditch rule into the equation.
The facts of the case
In Parmar and others v Upton [2015] EWCA Civ 795, two neighbouring landowners became embroiled in a dispute regarding boundary ownership. The claimant landowner (“C”) argued that the defendant landowner (“D”) was trespassing over its land, which C had acquired in 1997. D had recently purchased neighbouring land, which formed part of a new residential development. C brought trespass proceedings against D.
The case centred on whether or not the boundary to C’s land ran along the edge of a ditch. A hedge (now largely disappeared) grew immediately adjacent to the ditch. The land on either side had been in separate ownership and, in the County Court, the judge found nothing to rebut the hedge and ditch rule presumption and found that C’s boundary ran along the outer edge of the ditch. The judge therefore found in favour of C.
The outcome of the appeal
The Court of Appeal first asked whether the hedge and ditch rule had settled the relevant boundary when C acquired C’s land in 1997, and secondly looked at whether the presumption established by the rule might be rebutted by any other evidence.
The Court found that it was not in dispute that the boundary separated land in different legal ownership for many years and found that there was insufficient evidence to demonstrate that the hedge and ditch rule should be rebutted. The topography of the boundary showed that there was a ditch and adjacent hedge. D’s argument that the ditch might have been dug by D’s predecessor in title (not C’s), caused the Court to pause for thought but, without any particular evidence to support the theory, the Court ultimately dismissed the argument as speculation.
It was also found that the conveyancing history evidence did not rebut the rule. The conveyance to C in 1997 stated that the boundaries were marked for identification purposes only, meaning that the general boundaries rule was brought into play. The 1997 conveyance was not thereby significant for the purposes of challenging the hedge and ditch rule. In fact, a conveyance dated 1925 in respect of D’s land contained a plan that was interpreted by reference to visible features on the ground at the time of the conveyance (including a hedge and ditch) and it was held that, on the facts, it would have been concluded at the time of that conveyance in 1925 that the boundary on the conveyance plan was the boundary now construed under the hedge and ditch rule.
The Court therefore found that C owned the hedge and ditch, that the boundary to C’s land ran along the far side of the ditch, and that C was therefore entitled to sue D for trespass over it.
Implications
Although the case has not broken new ground so far as the law is concerned, it provides a very good example of how the Courts will apply the hedge and ditch rule and also confirms that the rule continues to serve a purpose in respect of boundary disputes, particularly in rural areas.
For further information or legal advice, please contact law@blandy.co.uk or call 0118 951 6800.
This article is intended for the use of clients and other interested parties. The information contained in it is believed to be correct at the date of publication, but it is necessarily of a brief and general nature and should not be relied upon as a substitute for specific professional advice.
