Hedge and ditch forming boundary between plaintiff’s and defendant’s land – Defendant grubbing up hedge – Plaintiff sueing for trespass – Whether hedge and ditch presumption arising where land conveyed by reference to Ordnance Survey map
The plaintiff and the defendant owned adjoining land separated at one point by a hedge and a ditch. The defendant’s title to his land, which once formed part of Home Farm, Saverley Green, Staffordshire, was derived from a vendor who conveyed to the defendant in 1985 the same land as had been conveyed to her by a conveyance dated February 5 1975. The 1975 conveyance described the parcels of land by reference to Ordnance Survey field numbers, the attached plan being an exact copy of the Ordnance Survey map showing field 675 adjoined field 7751. The latter field was owned by the plaintiff and had once been part of Saverley Green Farm. The plaintiff’s title to the ditch-side land derived from a conveyance in 1984 which purported to convey only the land which his vendor’s predecessor had himself acquired by a conveyance in 1921. Its reference to the Ordnance Survey map was for identification purposes only and it showed Field 7751 forming the eastern boundary with Home Farm. Until 1987 there had been a hedge between fields 6751 and 7751, and there was a ditch, which ran the full length of the hedge on the Saverley Green side.
In 1987 the defendant scrubbed out the hedge dividing the two fields and erected a wood post and wire fence along the old line of the far lip of the ditch. The plaintiff alleged trespass and claimed damages from the defendant, who contended that the boundary was fixed by application of the presumption that where two estates were separated by a hedge and a ditch, both were presumed to belong to whoever owned the land on the hedge-side of the ditch. The plaintiff contended that that presumption did not arise where the land had been conveyed by reference to an Ordnance Survey map which delineated the boundary. The judge found for the plaintiff and decided that the boundary between the two estates had been marked by a hedge and ditch which were likely to have originated contemporaneous. He concluded that the plaintiff’s title included not only the ditch but ran up to the centre of the hedge itself. The defendant appealed on the basis that the judge had erred in not applying the hedge and ditch presumption contending, inter alia , that prior to February 5 1975 neither title had been conveyed by reference to Ordnance Survey maps. The defendant submitted in the Court of Appeal that the plaintiff had never owned the ditch and so could not complain of trespass upon it.
Held The appeal was dismissed.
Once a hedge-side owner’s land appeared to be defined by an Ordnance Survey related conveyance to end at the line of the hedge, there was no need to ascertain 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 was only when a boundary dispute crystallised that it became necessary to consider the situation. Where, as in the instant case, the hedge-side owner’s land had then been defined by a conveyance, that was decisive. Only if the conveyance left the boundary unclear was it necessary to research, perhaps into the distant past, to see whether the dispute could be resolved by “that touchstone of last resort”, the hedge and ditch presumption.
Ian Foster (instructed by Grindeys, of Stoke-on-Trent) appeared for the appellant; Charles Machin (instructed by Challinors & Dickson, of Stoke-on-Trent) appeared for the respondent.
