Boundaries — Hedge and ditch presumption — Conveyance by reference to Ordnance Survey plan — Whether presumption rebutted
In July 1985 the appellant acquired, by
conveyance, land from PB. PB’s title was a conveyance of 1975. The schedule to
the 1975 conveyance described the land 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
appellant’s land was separated by a hedge and ditch from the respondent’s
adjoining land, the ditch being on the respondent’s side of the hedge. The respondent’s
title was by verbal description without reference to the Ordnance Survey
numbers. In 1987 the appellant removed the hedge and erected a fence along the
old line of the far lip of the ditch. The respondent brought proceedings
against the appellant for trespass. The Court of Appeal, dismissing the
appellant’s appeal, upheld the recorder’s decision that the boundary ran along
the centre of the hedge. The appellant appealed.
allowed. A reference in a conveyance to Ordnance Survey enclosure numbers was
in itself fairly inconclusive as to whether the parties intended the boundary
to be the precise place that the Ordnance Survey map represented. The
conveyancing parties could not have intended to use the centre of the hedge as
the boundary. In the present case, there was no doubt that there had been, for
many years, a hedge and ditch on what had been for centuries the boundary
between the two properties. There was no evidence to displace the hedge and
ditch presumption; the boundary ran along the respondent’s side of the ditch.
The following cases are
referred to in this report.
Alan Wibberley Building Ltd v Insley [1998] 1 WLR 881; [1998] 2 All ER 82; [1998] 2 EGLR
107; [1998] 29 EG 111
Asher v Whitlock
[1865] LR 1 QB 1
Fisher v Winch
[1939] 1 KB 666
Vowles v Miller
[1810] 3 Taunt 137
This was an appeal by the
defendant, John Graham Insley, against the decision of the Court of Appeal
([1998] 2 EGLR 107) that had dismissed the defendant’s appeal against the
decision of Mr Recorder Alan Pardoe QC, in a claim for trespass brought by the
plaintiff, Alan Wibberley Building Ltd.
Charles Machin (instructed by Challinors &
Dickson, of Stoke-on-Trent) appeared for the plaintiff; Anthony Elleray QC and
Ian Foster (instructed by Grindeys, of Stoke-on-Trent) appeared for the
defendant.
Giving judgment, LORD HOFFMANN said: My lords, this appeal arises out of a
dispute over the ownership of a tiny strip of garden in rural Staffordshire.
But it raises a point of general importance about farm boundaries. That is why
leave was given to bring an appeal to your lordships’ house.
Boundary disputes are a particularly painful form
of litigation. Feelings run high and disproportionate amounts of money are
spent. Claims to small and valueless pieces of land are pressed with the zeal
of Fortinbras’ army. It is therefore important that the law on boundaries
should be as clear as possible.
The first resort in the event of a boundary
dispute is to look at the deeds. Under the old system of unregistered
conveyancing, this means the chain of conveyances and other instruments, going
back beyond the period of limitation, which demonstrates that the owner’s title
is, in practical terms, secure against adverse claims. These conveyances will
each identify the subject-matter in a clause known as the parcels, which
contains the description of the land. Sometimes it is no more than a reference
to the land conveyed by an earlier conveyance, which will then have to be
consulted. Older conveyances of farm property often describe the property as
being the house and land in the occupation of the vendor or his tenant. The
parcels may refer to a plan attached to the conveyance, but this is usually
said to be for the purposes of identification only. It cannot therefore be
relied upon as delineating the precise boundaries and, in any case, the scale
is often so small and the lines marking the boundaries so thick as to be
useless for any purpose except general identification. It follows that if it
becomes necessary to establish the exact boundary, the deeds will almost
invariably have to be supplemented by such inferences as may be drawn from
topographical features that existed, or may be supposed to have existed, when
the conveyances were executed.
The same is true in the case of registered
conveyancing. When registration was first introduced in 1862, parliament
thought it would be an improvement if the maps and plans used in the Land
Registry showed the exact boundaries. But this turned out to be a mistake, for
the reasons given by a Royal Commission that sat to consider land registration
a few years later. The following passage from the report (Land Transfer
Commission on the Operation of the Land Registry Act (1870), pxxix, para 80) is
cited in Ruoff and Roper, Registered Conveyancing (1998) vol 1 para
4-18:
Everyone who has had experience in conveyancing
knows that although the difficulties of identifying the parcels seem to be
serious and numerous, yet in point of fact they hardly ever arise. The
conveyancer sitting in his chambers is
But the attorney or land agent, seeing with his own eyes, and communicating
directly with the person in possession, is in the vast majority of cases
satisfied that his employer is getting the thing he contracted to have, and the
history of which is narrated in the abstract of title. If there is any border
land over which the precise boundary line is obscure, it is usually something
of very trifling value and the purchaser is content to take the property as his
vendor had it, and to let all questions of boundary lie dormant. But the Act of
1862 prevents a transfer on these terms. People who are quite content with an
undefined boundary are compelled to have it defined. And this leads to two
immediate consequences, both mischievous. First, notices have to be served on
adjoining owners and occupiers which may and sometimes do amount to an enormous
number, and the service of which may involve great trouble and expense… The
second [mischief] is that people served with notices immediately begin to
consider whether some injury is not about to be inflicted on them. In all cases
of undefined boundary they find that such is the case, and a dispute is thus
forced upon neighbours who only desire to remain at peace.
As a result of this report, the law was changed by
the Land Transfer Act 1875 to introduce what is known as the ‘general
boundaries’ rule. This is now contained in r 278 of the Land Registration Rules
1925:
(1) Except in cases in which it is noted in the
Property Register that the boundaries have been fixed, the filed plan or
General Map shall be deemed to indicate the general boundaries only.
(2) In such cases the exact line of the boundary
will be left undetermined — as, for instance, whether it includes a hedge or
wall and ditch, or runs along the centre of a wall or fence, or its inner or
outer face, or how far it runs within or beyond it; or whether or not the land
registered includes the whole or any proportion of any adjoining road or
stream.
The Land Registry uses maps based upon the
Ordnance Survey, which are, of course, usually very accurate. For example, if
one field is divided from another by a natural feature such as a hedge, the
line on the Ordnance Survey map will indicate the middle line of the hedge. But
the effect of the general boundaries rule is that the owner of a field shown on
the filed plan by reference to the Ordnance Survey map does not necessarily own
it up to the middle line of the hedge. The precise boundary must, if the
question arises, be established by topographical and other evidence.
There are certain presumptions that assist the
inferences that may be drawn from the topographical features. Perhaps the best
known is the one that is drawn from the existence along the boundary of a hedge
and a ditch. In such a case, it is presumed that the boundary lies along the
edge of the ditch on the far side from the hedge. The basis of this presumption
was explained by Lawrence J in Vowles v Miller (1810) 3 Taunt 137
at p138:
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
top of it…
It should be noticed that this rule involves two
successive presumptions. First, it is presumed that the ditch was dug after the
boundary was drawn. Second, it is then presumed that the ditch was dug and the
hedge grown in the manner described by Lawrence J. If the first presumption is
displaced by evidence that shows that the ditch was in existence before the
boundary was drawn, for example, as an internal drainage ditch, which was later
used as a boundary when part of the land was sold, then there is obviously no
room for the reasoning of Lawrence J to operate.
It is the scope of these presumptions which is in
issue in the present appeal. The appellant, Mr Insley, lives at Saverley
Cottage in the village of Saverley Green in Staffordshire. In 1985 he bought a
strip of extra land for his garden from Mrs Burton, the owner of the
neighbouring Home Farm. It lay along part of the boundary that separated Home
Farm from Saverley Green Farm. Between the two farms there was a hedge and a
ditch that had been there as long as anyone could remember. The hedge was on Mr
Insley’s side of the ditch. The field on the other side had been acquired by
the respondent company (Wibberley) from the owner of Saverley Green Farm in
1984.
In 1985 Mr Insley, relying upon the hedge and
ditch presumption, grubbed up the hedge along his section of the boundary and
erected a post and wire fence along the far side of the ditch. Wibberley
objected. It claimed that the true boundary ran along the middle of the hedge.
It brought proceedings in the county court to recover possession of the strip
that Mr Insley had enclosed. Wibberley was successful before the judge (Mr
Recorder Alan Pardoe QC) and by a majority (Simon Brown and Ward LJJ, Judge LJ
dissenting) his judgment was affirmed by the Court of Appeal.
The burden was upon Wibberley to show that it had
a better title than Mr Insley. He was in possession and therefore needed to
show no title at all. Possession is in itself a good title against anyone who
cannot show a prior and therefore better right to possession: Asher v Whitlock
[1865] LR 1 QB 1. The question was therefore whether Wibberley had acquired a
title to the strip. The land was unregistered and the question therefore depended
upon an examination of Wibberley’s deeds.
The title of Saverley Green Farm could be traced
back to the 17th century. It has always been in separate ownership from Home
Farm and there was nothing to show that the boundary had not always been in the
same place. Wibberley had acquired its land by a conveyance dated 14
1984 from the executors of Joseph Bedson, who had owned Saverley Green Farm
from 1921 until his death in 1954. The parcels in the conveyance to Wibberley
described the land by reference to a plan ‘for the purpose of identification
only’ and by reference to the conveyance of 11 April 1921, by which Joseph
Bedson acquired the land. In order to determine what land was conveyed to
Wibberley, it is therefore necessary to discover what land was conveyed to
Joseph Bedson.
The 1921 conveyance to Mr Bedson identified the
relevant part of the land by its extent in acres, roods and perches and the
fact that it was occupied by a Mr John Harvey. There was of course no direct
evidence of whether Mr Harvey had been in occupation of the strip in 1921. All
that is possible is to draw inferences from the hedge and ditch, which the
evidence suggested were probably in existence at the time. On the other hand,
there was nothing to suggest that the ditch was there before the ancient
boundary between the two farms had been drawn. So the hedge and ditch gave rise
to an inference, for the reasons stated in Vowles v Miller [1810]
3 Taunt 137, that Joseph Bedson’s land was bounded by the near side of the
ditch.
I therefore think it clear, my lords, that if the
question is confined to whether Wibberley had established a title to the strip
on the basis of its own deeds, the claim should have failed. But the judge and
the majority in the Court of Appeal held that Wibberley could succeed by
praying in aid inferences drawn from Mr Insley’s deeds. Therefore, although, as
I have said, Mr Insley was under no obligation to prove any title at all, I
must go on to examine his deeds.
Mr Insley acquired his extra piece of garden from
Mrs
land as being 594 sq yds in extent and shown on a plan for the purposes of
identification only. This description was therefore neutral as to whether it
included the strip or not. Mrs Burton had in turn acquired the property
(together with the rest of Home Farm) from Mr Wilfred Beard by a conveyance
dated 5 February 1975. This was a conveyance of ‘the property more particularly
described in the schedule hereto’. The schedule read as follows:
ALL THAT messuage
or farmhouse and outbuildings situate and known as Home Farm Saverley Green in
the County of Stafford TOGETHER WITH the land forming the site thereof and used
and occupied therewith which said property comprises in the whole ten decimal
point three nine 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 and Buildings |
0.82 |
|
6246 |
Pasture |
3.38 |
|
6751 |
Ditto |
3.08 |
|
7336 |
Ditto |
3.11 |
|
|
|
10.39 |
The field numbered 6751 included the land
subsequently sold to Mr
The argument principally turns upon this
conveyance, but to complete the picture I must consider what land Mr Beard
owned at the time. He derived title from a conveyance to him dated 25 September
1956, in which the land was identified simply as being known as Home Farm and
‘as now in the occupation of the vendor’. The earlier deeds are no more
specific about the boundaries. So if one had asked before the sale to Mrs
Burton where the boundary between Home Farm and Saverley Green Farm lay, Mr
Beard’s deeds would have told the same story as his neighbour’s. In both cases
the exact boundary would have depended upon an inference from the hedge and
ditch.
It is said, however, that upon its true
construction, the parcels of the 1975 conveyance gave Mrs Burton the land only
up to the midline of the hedge. I very much doubt whether this is correct. The
language is confusing. The land is said to be ‘more particularly’ delineated on
the plan but, almost in the same breath, the plan is said to be ‘for the
purposes of identification only’. It goes on to say that the land is ‘more
particularly described’ by reference to the Ordnance Survey field numbers. I
would regard this language as in itself fairly inconclusive as to whether the
parties intended the boundary to be in the precise place that the Ordnance
Survey map represented, namely in the middle of the hedge. When one looks at
the background, this construction becomes very unlikely. If one examined the
title of the vendor, Mr
show that, by virtue of the hedge and ditch presumption, he owned the land up
to the far side of he ditch. If, therefore, the 1975 conveyance drew the
boundary along the middle line of the hedge, Mr Beard would have been retaining
a useless strip between that line and the far side of the ditch. This was most
unlikely to have been the intention. The more likely inference, which the words
‘for the purposes of identification only’ support, is that the parties were
using the Ordnance Survey plan in the same way as it is used in registered
conveyancing, that is, to indicate the general boundaries. This would leave the
hedge and ditch presumption undisturbed, with the result that the 1975
conveyance included all the land up to the boundary of Saverley Green Farm on
the far side of the ditch. The same land was, in due course, conveyed to Mr
Insley.
In the Court of Appeal, however, counsel for
Mr
the middle of the hedge. Therefore the choices facing the court were either
that Mr Beard had (probably by a mistake) retained a useless strip or that it
somehow belonged to Wibberley. The majority came to the latter conclusion by
the following reasoning. The conveyances to Wibberley and its predecessors in
title were intended to convey the field up to the boundary with Home Farm,
wherever that boundary was. Until 1975, one would have had to assume, on the
basis of the hedge and ditch presumption, that it lay along the near side of
the ditch. But the 1975 conveyance cast a retrospective light on the matter. It
must be assumed that Mr Beard had also intended to convey to Mrs Burton all the
land up to the boundary with Saverley Green Farm. The 1975 conveyance shows
that they thought it ran along the middle line of the hedge. Therefore they
must have known something that displaced the hedge and ditch presumption in the
conveyances of Saverley Green Farm.
My lords, I am bound to say that this seems to me
highly improbable. It means that Mr Beard and Mrs
merely to convey whatever land Mr Beard owned but that they had undertaken some
inquiry, of a kind that the 1870 Royal Commission had said was burdensome and
likely to cause trouble, to establish the precise boundary between Saverley
Green Farm and Home Farm. Furthermore, they had ascertained that it lay in a
place which no previous conveyance or topographical evidence would have
suggested. But there is no evidence that they were privy to some piece of
information that would have displaced the hedge and ditch presumption as
applied to the earlier conveyances, or what that information might have been.
In my opinion, therefore, if one has to start with
the artificial assumption that the 1975 conveyance included the land only up to
the middle of the hedge, the most likely explanation is that the draftsman
simply made a mistake. The inartistic manner in which the parcels have been
drafted supports such a conclusion. The matter has since been remedied by the
execution of a confirmatory conveyance of the strip. But the 1975 conveyance,
whatever its effect as between Mr Beard and Mrs Burton, cannot have affected
the title of Wibberley, who took the land conveyed to Mr Joseph Bedson 60 years
earlier. And it is, as I have said, for Wibberley to establish its title to the
strip.
The majority relied upon the case of Fisher
v Winch [1939] 1 KB 666. In that case, the trustees of a large estate
sold it off in parcels. On 30 October 1922 they conveyed Dairy Farm to the
defendant by reference to a plan, not said to be for the purposes of
identification only, which had been copied from the Ordnance Survey map. Prima
facie, therefore, the defendant’s land was bounded by the centre of the
hedge represented by the line on that map. On the following day the trustees
conveyed an adjoining field to the plaintiff’s predecessor in title. There was
a hedge and a ditch between Dairy Farm and the plaintiff’s field, with the
ditch on the defendant’s side of the hedge. The plaintiff claimed that he owned
the hedge and ditch according to the presumption. But the Court of Appeal held
that the presumption could not affect the construction of the conveyance to the
defendant. Before the date of that conveyance, the land on both sides of the
hedge and ditch belonged to the trustees. The ditch was there before the
boundary was drawn. So there was no room for the reasoning in Vowles v Miller
[1810] 3 Taunt 137. Whoever dug the ditch could not have dug it along the
boundary because there was no boundary at that point. There was nothing to
displace the conclusion that, having chosen to describe the land by reference
to an Ordnance Survey plan, the trustees intended the boundary to be where that
plan indicated, namely along the middle of the hedge.
In the present case, there is no doubt that there
has been, for many years, a hedge and ditch on what has for centuries been the
boundary between the two farms. There is no evidence to displace the
presumption that the boundary between the farms was drawn before the ditch was
dug. So for all this time the presumption has determined the boundary. And
whereas in Fisher v Winch [1939] 1 KB 666 the question turned
upon the title of the person who took under the conveyance by reference to the
Ordnance Survey plan, here it turns upon the title of the owner on the other
side of the boundary. I therefore think that the reasoning in Fisher v Winch
[1939] 1 KB 666 can have no application. For these reasons, I would allow the
appeal and declare that the boundary ran along the Saverley Green Farm edge of
the ditch.
Agreeing, LORD
HOPE OF CRAIGHEAD said: My lords, I have had the advantage of
reading in draft the speech that has been prepared by my noble and learned
friend Lord Hoffmann. I agree with it, and for the reasons that he has given I
too would allow the appeal and declare that the boundary ran along the Saverley
Green Farm edge of the ditch. But I should like to add these observations as we
are differing from the Court of Appeal, where there was also a difference of
opinion. The majority (Ward LJ and Simon Brown LJ) held that the recorder was
right to find that the reference to the Ordnance Survey map had displaced the
hedge and ditch presumption, with the result that the line of the boundary was
in the middle of the hedge on the Saverley Cottage side of the ditch, which the
defendant has replaced by a fence. I find myself however, with respect, in full
agreement with the reasons that Judge LJ gave for rejecting the Ordnance Survey
map and applying the presumption.
Any boundary dispute that leads to litigation as
protracted as the dispute has been in this case is regrettable. But no workable
system of conveyancing can be expected to eliminate entirely the opportunity
for disputes to arise about boundaries. In most cases neighbours are content to
accept that absolute precision is unattainable. They recognise that a certain
amount of latitude must be given to whatever method has been used to fix the
boundaries of their land. That also is the view that has been taken by the
legislature. The original system of precise guaranteed boundaries under the
Land Registry Act 1862 gave rise to considerable difficulty. It had to be
abandoned in view of the expense that was involved in a survey of the precise
boundaries and the many disputes
certain amount of vagueness as to the precise line of their common boundary.
The result, as my noble and learned friend Lord Hoffmann has explained, was the
introduction of the general boundaries rule now contained in r 278 of the Land
Registration Rules 1925.
The use of maps or plans such as those published
by the Ordnance Survey is now widespread and has obvious advantages. Ordnance
Survey maps are prepared to a high standard of accuracy and are frequently and
appropriately used to fix boundaries by reference, for example, to Ordnance
Survey field numbers. But, like all maps, they are subject to limitations. The
most obvious are those imposed by scale. No map can reproduce to anything like
the same scale of detail every feature that is found on the ground.
Furthermore, as Judge LJ observed, [1998] 1 WLR 881* at p890B-C, the Ordnance
Survey does not fix private boundaries. The purpose of the survey is
topographical, not taxative. Even the most detailed Ordnance Survey map may not
show every feature on the ground that can be used to identify the extent of the
owner’s land. In the present case the Ordnance Survey map shows the hedge, but
it does not show the ditch. So there is no reason, in principle, in this case for
preferring the line on the map to other evidence that may be relevant to
identify the boundary.
*Editor’s note: Also reported at [1998] 2 EGLR
107
The essential elements for a sound decision in the
present case were, in my opinion, correctly identified by Judge LJ when he
said, first, that there was no evidence before the recorder that the disputed
land had been in common ownership and, second, that a party cannot by mere
assertion in the conveyance, however phrased, pass a title to land over which
he himself has none: [1998] 1 WLR 881 at pp889H and 890D. So even if the words
used in the May 1984 conveyance had indicated that it was the intention of Joseph
Bedson’s executors to fix the line of the boundary by reference to the features
shown on the Ordnance Survey map, it would still have been open to the
objection that the disputed land was land to which the executors had no title.
In Fisher v Winch [1939] 1 KB 666
the dispute concerned a boundary that had been created by the separation into
two separate parcels of land previously in common ownership. The title of the
common owner was not in question. What was in issue was simply the line of the
boundary, bearing in mind the fact that the common owner could not convey the
same piece of land on successive days to two different purchasers. In the
present case there was no common owner, so the solution to the dispute must be
found by analysing the titles of each party in order to identify the limits of
each party’s ownership. In neither case was the title identified by reference
to Ordnance Survey maps until quite recently. This was done long after the
ditch was dug and the hedge was planted. It was no doubt convenient to refer to
the map in subsequent conveyances for identification purposes. But these
references did not enable the owner to convey to another a title to land over
which he himself had no title. They did not remove the need to examine the
titles in the event of a dispute, as it was one between the owners of land not
previously in common ownership.
In this situation it seems to me that the hedge
and ditch presumption, far from being a touchstone of last resort, as Simon
Brown LJ put it [1998] 1 WLR 881 at p895B, is the best guide to the line of the
boundary.
LORD
BROWNE-WILKINSON, LORD LLOYD OF BERWICK and LORD CLYDE agreed and did not add anything.
Appeal allowed.
