Boundaries — Hedge and ditch presumption — Conveyance by reference to Ordnance Survey plan — Whether presumption rebutted
In July 1985
the defendant acquired, by conveyance, land from PB. PB’s title was a conveyance
of 1975. The schedule to the 1975 conveyance described the land conveyed by
reference to Ordnance Survey enclosure numbers and acreages. Prior to the 1975
conveyance, the title passed by only a general description of the farm of which
the land was then part. The defendant’s land was separated by a hedge and ditch
from the plaintiff’s adjoining land, the ditch being on the plaintiff’s side of
the hedge. The plaintiff’s title to his land was by verbal description without
reference to the Ordnance Survey numbers. In 1987 the defendant removed the
hedge and erected a wood post and wire fence along the old line of the far lip
of the ditch. The plaintiff brought proceedings against the defendant for
trespass. In the court below the recorder declared the true boundary between
the properties as the centre of the hedge. The defendant appealed, contending, inter
alia, that the recorder had erred in failing to apply the hedge and ditch
presumption, by which it is presumed that where there is a hedge and a ditch, the
boundary is on the side of the ditch furthest from the hedge. Accordingly, the
plaintiff was not the owner of the disputed strip of land.
only comes into operation where the boundary is not delimited in the parcels to
the conveyance; it is a rebuttable presumption. The 1975 conveyance defined the
parcels by reference to the Ordnance Survey map; the Ordnance Survey uses the
centre of hedges as the boundary between enclosures. The parties to the 1975
conveyance were stuck with the objective meaning of the words of the
conveyance, which must be taken to have given effect to their true intentions
to convey the whole estate. Imputed to the vendor, under the 1975 conveyance,
is the assertion that the boundary between his farm and the plaintiff’s
neighbouring land was the middle of the hedge. What had been a presumption,
that the land of the vendor under the 1975 conveyance included the ditch, had
been displaced by his tacit admission that his land did not include it.
dissenting: Because of the deficiencies in the 1975
title, the 1985 conveyance did not grant the defendant title to the disputed
land. But the deficiencies did not result in the acquisition of the land by the
plaintiff.
The following
cases are referred to in this report.
Collis v Amphlett [1918] 1 Ch 232
Craven,
Earl of v Pridmore (1902) 18 Times LR 282
Davey v Harrow Corporation [1958] 1 QB 60; [1957] 2 WLR 941; [1957]
2 All ER 305, CA
Fisher v Winch [1939] 1 KB 666
Hall v Dorling [1996] EGCS 58
Neilson v Poole (1969) 20 P&CR 909
Prenn v Simmonds [1971] 1 WLR 1381; [1971] 3 All ER 237, HL
Taylor v Needham [1810] 2 Taunt 278
Vowles
v Miller [1810] 3 Taunt 137
This was an
appeal brought by the defendant, John Graham Insley, against the decision of
the recorder, Mr Alan Pardoe QC, in a claim for trespass brought by the
plaintiff, Alan Wibberley Building Ltd.
Ian Foster
(instructed by Grindeys, of Stoke-on-Trent) appeared for the appellant; Charles
Machin (instructed by Challinors & Dickson, of Hanley, Stoke-on-Trent)
represented the respondent.
Giving the
first judgment, WARD LJ said: This is a boundary dispute. To hear those
words, ‘a boundary dispute’, is to fill a judge even of the most stalwart and
amiable disposition with deep foreboding, since disputes between neighbours
tend always to compel, as this one did, some unreasonable and extravagant
display of unneighbourly behaviour which profits no one but the lawyers.
Fortunately this appeal is different. Ably argued as it has been by both
counsel, it crisply raises a point of law of some importance, especially in
rural England and Wales. That question, for the moment quite broadly stated, is
this: where adjoining fields are separated by a hedge and a ditch, who owns the
ditch? The interest in the case springs from the possibility that there are not
just two contenders, namely one or other of the owners of the contiguous
fields, but a predecessor in title to one of them. To sharpen the focus of the
issue before us, I must set the scene.
The scene is
the village of Saverley Green, somewhere in the depths of the Staffordshire
countryside. For over 150 years of the history revealed to us, Home Farm and
Saverley Green Farm were in separate ownership. The defendant now owns part of
the original Home Farm; the plaintiff part of the original Saverley Green Farm.
It was not in dispute that until removal of part of it by the defendant some
time in or after 1987 there had been a hedge between those two farms. The judge
found on the balance of probabilities that a ditch, as originally dug, ran the
full length of that hedge and continued to exist until recently. The ditch and
the hedge were likely to have been contemporaneously dug and planted. The ditch
was on the Saverley Green side of the hedge.
The parties’
title to their properties must be examined. By deed made in 1920, Home Farm was
conveyed to a Mr Beard under this description of the parcels of land:
All that farmhouse
buildings and land situated and known as Home Farm Saverley Green in the County
of Stafford containing by admeasurement 47 acres or thereabouts …
In 1975 Mr
Beard sold to Mrs Burton. That conveyance was differently drafted and the
difference is important. By that deed the vendor as beneficial owner conveyed
unto the purchaser:
All that the
property more particularly described in the schedule hereto …
The
schedule before referred to:
All that
messuage or farmhouse and outbuildings situated and known as Home Farm …
together with the land forming the site thereof and used and occupied therewith
which said property comprises in the whole 10.39 acres or thereabouts and is
more particularly delineated for the purposes of identification only on the
plan annexed hereto and thereon edged blue and is more particularly described
as follows: —
|
|
|
|
|
|
|
OS No |
Description |
Acreage |
|
|
|
5455 |
House/Buildings |
0.82 |
||
|
6246 |
Pasture |
3.38 |
||
|
6751 |
Ditto |
3.08 |
||
|
7336 |
Ditto |
3.11 |
||
|
10.39 |
||||
As would be
expected and as was common ground, the plans are an exact copy of the Ordnance
Survey map showing the fields as numbered. Field 6751 adjoins field 7751, which
is part of Saverley Green Farm. This is the boundary with which we are
concerned.
The defendant
owns Saverley Cottage, which he acquired in 1978. It lies across the top of
part of both fields with the disputed boundary between the fields forming the
stem of the T. In 1985 he bought a tiny corner of Home Farm field 6751 from Mrs
Burton, and for a length of 87 ft this addition to his garden adjoins the
plaintiff’s field 7751. The terms of that conveyance are rightly agreed to be
immaterial for present purposes.
As for
Saverley Green Farm, the plaintiff’s predecessor in title took a conveyance in
1921 of:
All that
messuage farmhouse or tenement with the barns stables outbuildings and
hereditaments thereto belonging called the Saverley Green Farm … formerly in
the occupation of … Richard Harvey … and also all those several closes pieces
or parcels of land … commonly known by the names and containing by
admeasurement the several quantities hereinafter mentioned that is say … (there
follow the names of a number of fields with their acreage) …
By a conveyance
made in 1984 the plaintiff acquired:
All those
plots pieces or parcels of land situate at Saverley Green in the County of
Stafford and which are for the purposes of identification only delineated on
the plan annexed hereto and thereon edged blue which said land was (with other
property) conveyed … by a conveyance dated … 1921 …
The plan
appears to have been drawn to correspond to — but not to be an exact copy of —
the Ordnance Plan and it shows field 7751 forming the eastern boundary with
Home Farm of the land thus conveyed.
The dispute
arose because sometime in about 1987 the defendant scrubbed out the hedge
dividing the two fields with which we are concerned and erected a wood post and
wire fence along the old line of the far lip of the ditch, and perhaps was
beyond that line. The plaintiff alleged trespass and sought relief accordingly.
Mr Recorder
Alan Pardoe QC found for the plaintiff and on November 30 1995 declared the
true line of the boundary between these properties, ordered the plaintiff to
erect a fence along that line, restrained both parties from entering the
other’s land and awarded the plaintiff damages of £900. The defendant appeals
against that order.
The issue
joined before the recorder was whether or not, as the defendant contended, the
boundary was fixed by application of the presumption that the person who dug
the ditch dug it at the extremity of his land and threw the soil on to his own
land to make the bank on which the hedge was planted, or whether, as the
plaintiff contended, that presumption did not arise where the land had been
conveyed by reference to the Ordnance Survey map which delineated the boundary.
The recorder applied Fisher v Winch [1939] 1 KB 666 and Davey
v Harrow Corporation [1958] 1 QB 60, and held that:
The boundary
of the land conveyed to Mrs Burton by the 1975 conveyance was the centre line
of the hedge between fields 6751 and 7751. It follows that the boundary towards
field 7751 of the part of field 6751 conveyed to the defendant by Mrs Burton in
1985 was similarly the centre line of the then existing hedge. The conveyance
of (Saverley Green) Farm which was also by reference to OS field numbers and
acreages leads to a conclusion correlative to one I have just come to. I
conclude that plaintiff’s title extended similarly to the centre line of the
hedge between fields 6751 and 7751.
The appeal was
launched on the basis that the recorder erred in not applying the hedge and
ditch presumption, contending in the notice of appeal that Fisher v Winch
did not apply as:
(i) In this
case there had never been, an ownership in relation to the plaintiff’s title
and the defendant’s title;
(ii) Prior to
5th February 1975 neither title had been conveyed by reference to Ordnance
Survey maps or plans; and
(iii) The
plaintiff’s title has never been conveyed by reference to Ordnance Survey maps
or plans.
When granting
leave to appeal on June 14 1996, Millett LJ said:
It seems to
me that it is arguable that what follows is this: first, prior to 1975 the
mutual boundary was on the plaintiff’s side of the ditch, the hedge and ditch
belonging to the defendant’s predecessor in title, since there was then nothing
to exclude the presumption. Second, the hedge and ditch have never been
conveyed to the plaintiff who has no paper title to them. Third they were, no
doubt inadvertently, excluded from the conveyance to the defendant’s vendor. If
that is right, then the paper title is still vested in the vendor of the 1975
conveyance to the defendant’s vendor. One or other of the parties may have established
title by adverse possession, but no issue as to this was before the recorder.
He was solely concerned with the paper title. Whether it is really worth
pursuing the dispute before this court in order to establish a new starting
position under which neither party has a paper title to hedge and ditch is a
matter for the parties.
The case has
been presented to us on the basis that the ditch did remain vested in Mr Beard;
and by deed dated August 9 1996 made between the executors of Mr Beard of the
one part, Mrs Burton of the second part and the defendant of the third part,
title to the ditch has now passed to the defendant. The principal submission is
that the plaintiff never owned the ditch and so could not complain of trespass
upon it.
Central to the
appellant’s submission is the proposition that prior to the 1975 conveyance the
boundary between the two farms had been fixed by operation of the hedge and
ditch presumption and that, having once been fixed, it could not and did not
change.
The origin of
the presumption can be traced back to observations of Lawrence J in the course
of argument in Vowles v Miller [1810] 3 Taunt 137, when he said:
The rule
about ditching is this. No man, making a ditch, can cut into his neighbour’s
soil, but usually he cuts it to the very extremity of his own land: he is of
course bound to throw the soil which he digs out, upon his own land; and often,
if he likes it, he plants a hedge on the top of it …
By 1902 this
presumption was, per Collins MR, ‘well-established’: see Earl of
Craven v Pridmore (1902) 18 Times LR 282, at p283. As that case made
plain, the presumption is a rebuttable one, the question there being, ‘how far
the presumption had been displaced by evidence of acts of ownership on the part
of the defendants’.
Not to treat
this presumption as rebuttable was the error identified in Fisher v Winch.
Since this case so shaped the recorder’s decision, I must analyse it in some
detail. The facts were that the land of both parties had been in common
ownership. The first part of the estate to be conveyed was the land sold to the
defendant. The terms of that conveyance were to all intents and purposes
identical to the 1975 conveyance to Mrs Brewer and thence to the defendant in
this case, that is to say it was a conveyance of land described in a schedule
which, per Sir Wilfrid Greene MR, at p670:
sets out by
reference to the numbers on the ordnance map the different parcels with their
description and acreage which were comprised in the conveyance. That conveyance
had a plan delineated upon it, and in that plan the ordnance survey numbers
with the acreage which corresponds with the ordnance survey acreage, are shown,
and it is quite clear from a comparison of that plan with the language of the
schedule that the plan is copied from the ordnance survey …
The conveyance
of the remainder of the estate to the plaintiff was of ‘land … containing …
3.261 acres … numbered 214 on the Ordnance Survey map … which … by way of
identification only is delineated on the plan drawn whereon …’. That conveyance
is, therefore, even more closely linked to the Ordnance Survey than the 1984
conveyance of part of Saverley Green Farm to the plaintiff. The following
observations of the Master of the Rolls are therefore as applicable to the case
before us as they were to the matter before him. He said:
It is to be
noticed in comparing those two conveyances that there is a difference in
wording, because the conveyance under which the defendant claims uses the plan
and the schedule as descriptive, and not as merely for identification, whereas
in the later conveyance the measurement is given and the number is given, but
the plan is only ‘for greater clearness and by way of identification only.’
However, once the question is decided as to what the defendant’s predecessor in
title got under his conveyance, no difficulty arises as to what the plaintiff’s
predecessor in title got under his conveyance, and the real question is, what
did the defendant get?
It was
necessary in that case to lead expert evidence:
as to the
universal practice in making up the ordnance survey maps. The effect of that
evidence is that where there is a hedge or a fence running along a parcel, that
is the boundary which is taken by the ordnance survey for the purpose of
delimiting the parcels which are shown on those maps … where the party’s title
is derived from a document which refers to the ordnance map, it is necessary to
look at the ordnance map and ascertain where the boundary shown on that map is
truly positioned … The boundary referred to on the ordnance survey map is the
centre line of the hedge and the fence. That being so, when the conveyance is
looked at, the boundaries on which are traced by reference to the ordnance
survey, and the acreage of which is fixed by reference to the ordnance survey,
it is established beyond possibility of question what the boundary is.
The conclusion
of the Master of the Rolls was:
That is
really an end of the case. The appeal has been necessary because, as I have
said, the learned judge, thinking that the governing matter was the
presumption, and not observing that the presumption only comes into
operation in cases where the boundary is not deliminated in the parcels
to the conveyance, decided the other way.
(Emphases
supplied.)
His earlier
remarks are important in dealing with Mr Ian Foster’s submissions on the
appellant’s behalf. At the beginning of his judgment, he said:
The dispute
between the parties is as to the precise boundary between their respective
properties. The learned judge decided this case in favour of the defendant upon
one point alone. He proceeded upon the footing that a presumption, which is
a well known presumption, was to prevail — namely, that where there is
nothing else to identify the boundary and there is a ditch and a bank, the
presumption is that the person who dug the ditch dug it at the extremity of his
land and threw the soil on his own land to make the bank. That, of course, is a
very convenient rule of common sense which applies in proper cases in
regard to agricultural land where there is no boundary otherwise
ascertainable … The learned judge, thinking that the case was governed entirely
by that presumption, decided in favour of the defendant by the learned judge
did not direct his mind to what in this case is the initial question —
namely, what, on the true construction of the conveyances to the parties, is
the boundary of their respective land. If an examination of those
conveyances coupled with any evidence that is admissible for the purpose of
construing them shows what the boundary is, there is no room at all for the
operation of that presumption. The learned judge did not direct his mind to
that question, but in my opinion the present controversy is solved without
difficulty when that question is considered.
(Emphases
supplied.)
In agreeing,
MacKinnon LJ drew attention to a passage in the judgment of Scrutton LJ in Collis
v Amphlett [1918] 1 Ch 232, at p259:
There is
undoubtedly a popular belief in some parts of the country which has found its
way into books that the owner of a hedge is also the owner of a space outside
it; sometimes said to be four feet from the base of the bank on which the hedge
stands. I am not aware of any legal authority for this broad proposition.
Goddard LJ added:
This matter
of the respective positions of the fence and the ditch as affording evidence of
the boundary was referred to in the defence and referred to throughout the
trial — which I think possibly explains some of the confusion that arose — as a
custom. It is not a custom at all when rightly understood, but it is a mere
presumption. It is a very different thing from a custom. This presumption
is very often decisive where there is no evidence at all as to what the
boundaries are, but like any other presumption it is rebuttable, and
very often it can easily be rebutted by the production of title deeds. In this
case, when the title deeds are examined, there is no room for the operation
of the presumption at all.
(Emphases
supplied.)
In Davey
v Harrow Corporation [1958] 1 QB 60 Lord Goddard CJ said, at p69:
after that
case (Fisher v Winch) and this, courts in future can take notice
of this practice of the Ordnance Survey (that the boundary line on the map
indicated the centre of the existing hedge) as at least prima facie evidence of
what a line on the map indicates.
These
decisions seem to me to compel this approach to this appeal:
1. The initial
question is ‘what on the true construction of the (two) conveyances to the
parties (the one to the plaintiff, the other to the defendant) is the boundary
of their respective land?’.
2. The
plaintiff’s 1984 conveyance in the wide language used is insufficient to
identify the parcels precisely. The plan is for identification only, the effect
of which, per Megarry J in Neilson v Poole (1969) 20
P&CR 909, at p916:
Seems … to
confine the use of the plan to ascertaining where the land is situated and to
prevent the plan from controlling the parcels in the body of the conveyance.
All this
conveyance tells one is that the land was part of Saverley Green Farm as it was
conveyed in 1921. The precise line of the boundary cannot be identified from
the conveyance but upon its proper interpretation; it cannot be doubted that
the land being conveyed extended up to its boundary with Home Farm, wherever
that boundary was.
3. Since ‘the
presumption only comes into operation in cases where the boundary is not
delimited in the parcels to the conveyance’ then, in the absence of any other
evidence, it can be presumed that the boundary is the Saverley Green
edge of the ditch and, accordingly, that Saverley Green Farm does not include
the ditch itself. This presumption is, however, rebuttable.
4. Turning to
the defendant’s conveyance (which it is agreed for all practical purposes means
the 1975 conveyance), this defines the parcels by reference to the Ordnance
Survey map and so ‘it is established beyond possibility of question what the
boundary is’, viz, the middle of the hedge. There is, therefore, ‘no
room at all for the operation of the presumption’. Consequently, as the
defendant now accepts, the ditch was not conveyed to him.
5. If the two
parcels were in common ownership, then ‘once the question is decided as to what
(the first purchaser) got under his conveyance, no difficulty arises as to what
the (purchaser of what can therefore only sensibly be understood to be the
remainder of the estate) got under his conveyance’.
6. The fact
that the parcels were not conveyed from a common owner does not render
inoperable the rules either that the first task is to construe the respective
conveyances or that the presumption has its proper place when ‘there is no
boundary otherwise ascertainable’.
I apprehend
there would not be much quarrel with those conclusions, and so I turn to the
defendant’s amended case, which I understand to be:
By virtue of
proposition 2 and 3 above, the plaintiff’s land extends only to the edge of the
ditch.
By virtue of
proposition 4 above, the defendant was conveyed land only to the middle of the
hedge.
The ditch,
which by operation of the presumption was part of the old Home Farm before 1975
but which was not included in the land conveyed in 1975, must therefore still
be a part of Home Farm and must still be owned by the original vendor, Mr
Beard.
I cannot
accept that reasoning which, in my judgment, betrays these errors:
1. There is no
law that the owner of the hedge owns the land beyond it: see Scrutton LJ cited
above. There is no custom to that effect: see Goddard LJ above. It is only a
presumption.
2. By
misunderstanding the operation of the presumption, the defendant has elevated a
presumed fact into an established fact. The presumption is not a presumption of
law, but a presumption of fact. It entitles the fact finding tribunal to infer
from basic facts (a ditch dug when land was not in common ownership) a presumed
fact (the boundary is on the far side of the ditch from the hedge). That
presumed fact is not an established fact because it is capable of being
rebutted.
3. Evidence
capable of displacing the presumption is such of the material evidence which is
before the fact finding tribunal. The fact finding tribunal was the recorder,
not a hypothetical observer judging matters as they stood in 1920 or 1921 or
indeed at any time before the 1975 conveyance.
4. The terms
and surrounding circumstances of the 1975 conveyance constitute evidence
capable of displacing the presumption.
5. The
conveyance, like the contract which preceded it, must be objectively construed.
Consideration of its ‘genesis’ and of ‘the aim of the transaction’, to borrow
from Prenn v Simmonds [1971] 1 WLR 1381, leads inexorably to the
conclusion that Mr Beard intended to sell and Mrs Burton intended to buy the
whole of the Home Farm land up to the boundary with Saverley Green Farm,
wherever that boundary was. It may well be that, being well versed in the rural
lore that the ditch belongs to the hedge, they might have had a common
intention to include the ditch and that it was (per Millett LJ) ‘no
doubt inadvertently excluded’. There might well have been a case for
rectification. But the deed has not been rectified. The parties to the deed are
therefore stuck with the objective meaning of the words of the conveyance,
which must now be taken to have given effect to their intention to convey the
whole estate. Imputed to Mr Beard is, therefore, an assertion that the boundary
between his farm and his neighbour’s farm was the middle of the hedge. What had
only been a presumption that his land included the ditch has been displaced by
his tacit admission that his land did not include it. If his land ended in the
middle of the hedge, his neighbour’s land began there as well. The 1975
conveyance does not operate to ‘convey’ the ditch to the plaintiff’s
predecessor: what it did was clarify where the defendant’s predecessor regarded
a hitherto uncertain boundary line to lie.
6. Any other
conclusion would produce the absurdity that there was a strip of land the width
of the ditch running down the field. It would be landlocked because no rights
of way are reserved. Such an omission is a further pointer to the true
construction of the deed excluding ownership of the ditch to which, on this
hypothesis, the vendor could have no access. Mr Foster valiantly counters this
absurdity with what he says is an absurdity inherent in Mr Machin’s submissions
for the plaintiff, namely that if the vendor had sold the top half of the field
and conveyed it by deed describing the land by reference to the Ordnance Survey
map, but sold the bottom half without such reference, then what everyone would
once have thought to have been a straight line would now be a zigzag. That is
as may be. But the answer to it is that such an oddity would have been created
entirely by sloppy conveyancing, where the conveyancers have failed to have regard
to the effect of Fisher v Winch on the presumption. That, I
suspect, is the true source of the difficulty posed by this appeal.
If the proper
construction of the 1975 conveyance is that Mr Beard conveyed the whole of his
land up to its boundary with the adjoining farm, then ‘there is no room at all
for the operation of the presumption’. It may be another way of saying the same
thing, but it seems to me that there is no room for the presumption to apply
because the evidence has clearly displaced the inference and rebutted the fact
it was seeking to establish.
I am therefore
satisfied that the recorder correctly applied the law to the facts he found and
that he came to the correct conclusion. The result does not diminish the
usefulness of the presumption and what may be a widely held common perception
of its operation in rural communities. I am, however, relieved that the
conclusion will have the beneficial result that maps of rural England and Wales
will not have to be redrawn to show mile upon mile of ditches owned by some
long forgotten vendor, whose solicitors chose to convey the land he was selling
by reference to the Ordnance Survey map. I am relieved that boundary disputes
will not as a result have the added complication of tracing these long lost owners
and squabbling about title having been acquired by adverse possession. As I
indicated at the beginning of this judgment, boundary disputes are horrid
enough as they are.
I would,
therefore, dismiss this appeal.
Dissenting, JUDGE
LJ said: The action by the plaintiff was formulated in trespass. The claim
to possession of the disputed land was based not on general evidence of
physical control of the land or adverse possession as against the defendant,
but on proof of ownership or title to it. For this purpose it was not enough
for the plaintiff to demonstrate that contrary to his own assertions the
defendant also lacked or was unable to prove title to the same disputed piece
of land.
There was no
evidence before the recorder that the disputed land had been in common
ownership. He decided that the boundary between the two estates had been marked
by a hedge and ditch which were likely to have originated contemporaneously.
The ditch was on the plaintiff’s side of the hedge. Nevertheless, he concluded
that the plaintiff’s title included not only the ditch but ran up to the centre
of the hedge itself.
The difficulty
with this conclusion is that there is nothing in any of the deeds relating to
the plaintiff’s land prior to the May 1984 conveyance which begins to hint at
it. The title of the plaintiff depended on the terms of the May 1984 conveyance
from CJ and HB Bedson, the executors of Joseph Bedson deceased, who acquired
the land by indenture dated April 11 1921, by verbal description. No reference
to Ordnance Survey maps or plans was made in any relevant deed relating to this
land prior to May 14 1984, when the conveyance referred to them ‘for
identification purposes only’, and went on to state expressly that the land
that passed to the plaintiff was the land included in the April 1921 indenture.
Although the 1984 conveyance referred to the Ordnance Survey, of itself the
Ordnance Survey does not fix private boundaries. Therefore, although the
parties to a conveyance may choose deliberately to adopt the Ordnance Survey to
identify the land which is the subject of the conveyance, that, in my judgment,
does not enable a party without title to a given parcel of land to convey it to
a purchaser merely by including within the conveyance a reference to the
Ordnance Survey (or any other feature). In summary, and for present purposes
ignoring the provisions of the Land Registration Act 1925, he cannot by mere
assertion in the conveyance, however phrased, pass a title to land over which
he himself has none, a fortiori where the relevant conveyance, as here,
merely refers to the Ordnance Survey for the purposes of identification.
Although not
cited in argument, I find the corollary of the principle I am endeavouring to
express encapsulated in the observations of Mansfield CJ in Taylor v Needham
[1810] 2 Taunt 278, at pp282–283:
it would be a
very odd thing in the law of any country, if A could take, by any form of
conveyance, a greater or better right than he had who conveys it to him; it
would be contrary to all principle. But it does not rest merely on the general
principle; if you look into all the books upon estoppel, you find it laid down,
that parties and privies are estopped, and he who takes an estate under a deed,
is privy in estate, and therefore never can be in a better situation than he
from whom he takes it.
In reality,
the conclusion that the defendant nevertheless trespassed on the plaintiff’s
land was based on evidence about his own lack of title and argument about the
applicability or otherwise of the hedge and ditch presumption in the context of
the conveyance to the plaintiff as well as to him.
The
defendant’s title was acquired by conveyance dated July 23 1985 from Patricia
Burton, whose title derived from the conveyance to her from Wilfred Beard dated
February 5 1975. The schedule of the 1975 conveyance described the parcels of
land by reference to Ordnance Survey field numbers and acreages shown on the
plan, which was itself a copy of the relevant part of the Ordnance Survey. She
purported to convey the same land to the defendant as Mr Beard had conveyed to
her, and for this purpose adopted the same document. The reference to the
Ordnance Survey meant that the boundary of the land conveyed by the respective
vendors was based on the centre of the hedge line, and did not expressly
include the ditch and half the hedge on the plaintiff’s side.
Wilfred Beard
had acquired his land from Joseph Beard by conveyance dated September 25 1956
and he in his turn had acquired the land by conveyance dated January 13 1920.
Each of these conveyances depended on verbal description and neither referred
to any plan nor the Ordnance Survey.
From this
brief summary it is clear that until February 5 1975 all the deeds in respect
of both parcels of land were silent about the true line of the boundary between
them. As the recorder found, the relevant parcels of land, including the
disputed land, were not for any relevant purposes in common ownership. Next,
for the reasons given when analysing the plaintiff’s title, the defendant could
not purchase land from Mrs Burton that she herself was not entitled to sell.
Finally, in my judgment, the application of the hedge and ditch presumption
until February 4 1975 would, in the absence of any other relevant evidence (and
there was none), have led to the conclusion that the land owned by Wilfred
Beard or his predecessors in title included the area of land now in dispute.
Although a
significant part of the argument depended on analysis of the hedge and ditch
principles, in my judgment, they are uncontroversial and adequately summarised
for present purposes in Emmet on Title, at 17-023
When two
estates are separated by a hedge and a single ditch, the presumption is, in
default of evidence, that both ditch and hedge belong to the owner of the land
on which the hedge is planted … The presumption does not arise if the position
of the boundary can be ascertained from the title deeds.
I can see no
basis for trivialising this principle. In large areas of the countryside it is
well understood and has indeed ensured that those with a boundary formed by a
hedge and ditch know exactly where they stand without recourse to legal advice
or litigation. Sir Wilfrid Greene MR in Fisher v Winch [1939] 1
KB 666 observed ‘it is a very convenient rule of common sense which applies in
proper cases in regard to agricultural land where there is no boundary
otherwise ascertainable’. Goddard LJ, while rejecting the argument that the
hedge and ditch method of ascertaining a boundary amounted to a ‘custom’ and
underlining that it was merely a presumption, added that it was ‘very often
decisive where there is no evidence at all as to what the boundaries are … ‘.
In Davey
v Harrow Corporation [1958] 1 QB 60 he returned to the same point
acknowledging that ‘the judge was justified, in the absence of the further
evidence which was given before us, in applying the presumption that the bank
and fence were the property of the landowner on whose side of the fence the
ditch was not’.
In Davey
the conveyances which formed the plaintiff’s title were always described by
reference to the Ordnance Survey, and the case involved the rather odd
situation that the defendants, having pleaded that the trees with the
encroaching roots were on their property, asserted after all that the land on
which the trees grew belonged to the plaintiff or his predecessors in title. In
the present case neither title was identified by reference to Ordnance Survey
plans until relatively recently, and certainly not before February 1975. In Fisher
the boundary under consideration had been created out of two separate disposals
of parcels of land on successive days by the common owner. Although the
conveyances were differently worded, examination of the title deeds to both
parcels of land demonstrated the line of the boundary. As Beldam LJ commented
in Hall v Dorling, unreported March 26 1996*, ‘if the trustees
had specifically conveyed land delineated on a plan to the defendant they could
not subsequently in law transfer it to the plaintiff’. Therefore the decision
in Fisher was hardly surprising. By contrast, in the present case, the
deeds did not stem from common ownership of land nor did the conveyances
immediately follow one another. Rather, two separate titles without an
identifiable common source of origin were under consideration.
*Editor’s
note: Reported at [1996] EGCS 58
If when
considering the plaintiff’s claim the court were limited to consideration of
the words of the separate conveyances from which each party received its title
or, in other words, in the present case without reference to title (or lack of
it) before May 14 1984 in relation to the parcel of land belonging to the
plaintiff, and in the defendant’s case without reference to title before July
23 1985 or indeed February 5 1975, then the decision in Fisher would
lead to the conclusion that the line of the boundary was the middle of the
hedge and that the plaintiff was entitled to the disputed land. One simply
looks at the two plans and by reference to the Ordnance Survey the relevant
boundary lines shown in each coincide.
In my
judgment, the approach to the problem adopted in Fisher is not justified
when the dispute does not arise out of the creation of two parcels of land out
of one. In the present case, there has in law been no link between the titles
to the separate parcels of land owned by the plaintiff and the defendant.
Therefore the two unconnected titles must be analysed. The history cannot be
ignored, particularly where, as here, the conveyance on which the plaintiff’s
title depends expressly refers to the 1921 conveyance. Despite the reference to
the Ordnance Survey for identification purposes, this reference emerged from
nowhere without any evidence to suggest that the vendor was entitled to sell
the disputed land. Indeed he only purported to sell the land which had been
acquired by Joseph Bedson under the April 1921 conveyance. Therefore, without
repeating the reasons given earlier in this judgment, the plaintiff’s
conveyance did not vest ownership in him. Equally, the defendant’s claim to the
disputed land depended on the hedge and ditch presumption of law, but was
contradicted by the conveyance to him. Whatever the position may have been in
February 1975, the conveyance to the defendant did not grant him title to the
disputed land. However, in my judgment, the deficiencies in his title do not
result in the acquisition of the land by the plaintiff.
This
conclusion leaves a strip of apparently valueless land between the two
properties which belongs to neither the plaintiff nor the defendant. This is
unlikely to have been the intention of the parties who owned the disputed land,
Mrs Burton or, more particularly, Mr Beard. Treating them for present purposes
only as one, so as to avoid unnecessary repetition, as they did not
deliberately reserve this small piece of land, for example, to allow for
subsequent building development on it, it presumably all came about by
oversight or accident. That would not justify the court interfering with rights
to land which were not disposed of expressly, or in effect decide that they
forfeited their title to land to someone to whom they had not sold it. Neither
Mr Beard nor Mrs Burton intended that the hedge and ditch which belonged to
them should become the property of the plaintiff. Their deeds did not say so.
They should not be deemed to have surrendered the disputed land to the
plaintiff or any successors in title.
The solution
reached in this case is that there has been a deed of confirmation purporting
to put right the accidental omission from the 1975 and 1985 conveyances to the
defendant. It has no bearing on the outcome of this case because it was not at
any stage before the recorder nor indeed before this court. I have therefore
wholly ignored it in reaching my conclusion, but pause to observe, first, that
if it had been before the recorder it might have assisted in the resolution of
the problems, but this being a boundary dispute, it is impossible to conclude
that it would have brought this expensive litigation to an end, and, second,
that where similar problems arise, it would be sensible for the predecessors in
title to be contacted at a very early stage in the proceedings and an
appropriate deed or declaration obtained from
thought he had disposed of, for which he believed he had ceased to have any
responsibility, would become unreasonably demanding. Finally, in view of the
conclusion reached by Ward and Simon Brown LJJ, whose judgments I have read in
draft, both vendors and purchasers of land should be alerted to the problems of
using the Ordnance Survey for the purpose of identifying the land which they
respectively wish to sell and buy. The Ordnance Survey highlights the hedge and
ignores the ditch. The inconvenience of buying and thereafter maintaining
(whether by laying or otherwise) half the width of a hedge, without any
entitlement to use the adjacent ditch, as well as the scope for dispute with
the owner of the other half of the hedge, require that the most careful
consideration should be applied to the problem of using the Ordnance Survey as
providing the boundary between the two parcels of land.
For the
reasons given earlier in this judgment, I would allow this appeal.
Agreeing with
Ward LJ, SIMON BROWN LJ said: Where two estates are separated by a hedge
and a ditch, both are presumed to belong to whoever owns the land on the
hedge-side of the ditch. This is known as the hedge and ditch presumption. But
it is only a presumption and it is rebuttable whenever other evidence points to
a different boundary.
The novel
question raised by this appeal is whether the presumption is rebutted merely by
a conveyance of the hedge-side land which, by direct reference to an Ordnance
Survey map, conveys only the land up to the centre point of the hedge.
Mr Foster, on
behalf of the appellant (the hedge-side owner), submits not. He acknowledges
that as a result of the two successive conveyances of the hedge-side land,
respectively in 1975 from Wilfred Beard to Patricia Burton and in 1985 from
Patricia Burton to the appellant, both Mrs Burton and in turn the appellant
himself acquired land only to the centre of the hedge. He relies, however, on
the judge’s finding of fact that prior to 1975 the hedge and ditch presumption
would have arisen in Wilfred Beard’s favour to argue that the subsequent
conveyances of the hedge-side land, while admittedly failing to convey the
further half of the hedge and the ditch to the appellant, can on no view have
operated to transfer this strip of land to the ditch-side owner, the
respondent. Rather, he submits, ownership of this strip remains in Wilfred
Beard’s estate. As for the 1984 conveyance of the ditch-side land to the
respondent, that, Mr Foster submits, was of entirely neutral effect. It
purported to convey only the land which the vendor’s predecessor in title had
himself acquired under the 1921 conveyance and its reference to the OS map was
for identification purposes only.
For my part, I
accept that the 1984 conveyance of the respondent’s land was of neutral effect.
It was consistent equally with the disputed strip being included in or excluded
from the land being transferred. Even, indeed, had the 1984 conveyance
purported to convey this strip by defining the land (as the 1975 and 1985
conveyances did) directly by reference to the OS plan, that too, I am prepared
to accept, would not have been sufficient to displace the presumption: the
appellant as hedge-side owner could still have contended that the respondent’s
predecessors in title had purported to convey to him more than they owned and
that the boundary remained where the presumption placed it.
Therefore, as
I repeat, the case turns on the effect of the 1975 and 1985 conveyances. Do
these operate to rebut the presumption?
Ward LJ has
already considered the main authorities and in particular has set out the
relevant parts of the judgments of the Court of Appeal in Fisher v Winch
[1939] 1 KB 666. I acknowledge, of course, that in that case the earliest conveyances
before the court, the conveyances which had transferred the respective estates
out of common ownership, had conveyed the properties by reference to OS plans,
and that in the case of the defendant hedge-side owner that had been, as here,
by direct reference to the plan. Necessarily, therefore, the court was bound to
conclude that the plan and not the presumption was decisive of the position of
the boundary: if the ditch had been dug before the conveyances (ie while the
estates were still in common ownership), then by definition it could have
raised no presumption at all; if, however, it were dug after the conveyances,
it could not enlarge the hedge-side owner’s estate, which was already by then
established by the terms of the conveyance itself.
The present
case, I accept, is by no means as simple as that. But, to my mind, the plain
fact that the 1975 conveyance (and in turn the 1985 conveyance) transferred
land only to the centre of the hedge (a fact which Mr Foster now acknowledges,
although apparently it was contested below, certainly on the pleadings) should
be regarded, in the absence of any evidence to the contrary, as decisive of the
true boundary of the estate which Mr Beard owned and was presumably intent on
conveying. Given, indeed, the presumption as to the true boundary arising from
the OS plan and, as I see it, the natural presumption, in the absence of any
evidence to the contrary, that Mr Beard was intent on conveying his whole
estate — rather than on leaving in limbo down the years a strip of land in the
middle of nowhere whose ownership it might become ever more difficult to
establish — I see no room for the operation of the hedge and ditch presumption
at all. Indeed I go further. I question whether in a case like the present it
was appropriate to investigate whether, prior to 1975, the facts would have
been such as to found a claim based on the presumption. Here, it will be noted,
there was a factual dispute below as to whether there ever had been a ditch
running alongside the hedge at the relevant part of the boundary. True, that
dispute was resolved in the defendant’s favour. But why, I ask rhetorically,
did the judge ever need to address it? He will have decided this factual issue
on the balance of probabilities, perhaps by the narrowest margin. Yet the
likelihood that Mr Beard thought that his boundary ended at the hedge by
reference to which he conveyed his estate, seems to me altogether clearer.
I conclude
that once, as here, the hedge-side owner’s land appears to be defined by an OS-related
conveyance to end at the line of a hedge, that (provided only that the
conveyance of the adjacent estate is consistent) is that, and it becomes
unnecessary to explore whether or not, at some earlier date, the facts might
have supported a claim to additional land based on the hedge and ditch
presumption. It is only when a boundary dispute crystallises that one needs to
consider the position. If, as here, the hedge-side owner’s land has by then
been defined by a conveyance, that is decisive. Only if the conveyance leaves
his boundary unclear does it become necessary to research, perhaps into the
distant past, to see whether the dispute can instead be resolved by that
touchstone of last resort, the hedge and ditch presumption.
The short
answer to the appellant’s question: how could the 1985 conveyance transfer to
the respondent more land than, given the hedge and ditch presumption, was his
vendor’s to sell, is that it did not: the question wrongly predicates that the
presumption had operated to define the boundary before the 1975 conveyance. It
had not. There had not by then been any boundary dispute and thus no occasion
to decide one way or the other whether the presumption arose. By the time the
dispute arose, the boundary was well able to be determined in the manner I have
indicated, ie by the conveyances, in particular the 1975 and 1985 conveyances,
of the appellant’s land. There was accordingly no good reason to assume that
the respondent’s land prior to 1975 extended only to his edge of the ditch and,
to my mind, the judge’s needless findings of fact on the point are no
sufficient basis for according the presumption a role in resolving this dispute
that it should never have had.
If it be
suggested that the approach I advocate depreciates the value of the hedge and
ditch presumption, a presumption widely recognised and relied upon up and down
the country, I reply not so. The presumption remains as valuable as ever it
was. Those whom it favours, however, must recognise that it will be lost by
conveyances of their land that clearly appear to deny its effect. If, as
vendors, they wish to transfer the ditch and not just half the hedge, their
conveyance should not define the land, as here, by direct reference to an OS
plan which puts the boundary along the hedge. If, for whatever unlikely
reason, they wish to retain the ditch, their conveyance should make this plain.
If, as purchasers, they are intent upon acquiring the ditch, they should ensure
that the conveyance to them is apt for the purpose. If in all this they fail,
the presumption will not thereafter avail them.
I, too, would
dismiss this appeal.
Appeal
dismissed.
