Boundary to freehold land — Land divided by deep ditch — Plaintiff and defendant each claiming ownership of strip of land represented by ditch — First instance decision that line to be drawn down centre of ditch — Whether judge entitled to draw a conclusion from plan attached to conveyance — Whether rebuttable presumption — Appeal allowed
The appellant, H, was the owner of freehold land at 1 Pond Green, Wicken, Cambridgeshire. Part of his land consisted of a large arable field of about three acres which at its western boundary adjoined the defendants’ freehold land — 8 Chapel Lane. Wicken was a small village in a conservation area and the plaintiff’s land was conveyed to his father in 1933 where he had lived ever since. The site of the defendants’ property, at present vacant, was bought in 1928 by N. Thereafter N’s land passed to a development company in 1963 where the plan attached to the conveyance showed a ditch and one foot beyond as part of the land to be conveyed, but which the auctioneer announced was also claimed by the appellant. As a result, the development company paid only £225 for the land and, in turn, conveyed the land to the defendants in 1993.
The defendants sought planning permission for several houses on the site. The proposal was considered unacceptable by the planning authority. The division between the appellant’s and defendants’ land had always been by a fairly deep and substantial ditch which, at some stage after 1928, N had piped and filled in. The area was grassed over but the evidence was clear that the appellant and his family had always maintained the ditch after having removed a substantial hedge running along the ditch on their side to facilitate ploughing. The ditch was agreed to be about 6 ft wide. The first defendant had failed to negotiate the purchase from the plaintiff of the ditch and a further strip of land, possibly to satisfy the planning authority of the feasibility of his development. Thereafter proceedings were commenced between the parties. The judge at first instance stated that where the conveyancing documents showed where the boundary lay, there was no room for presumption, and held that the boundary line ran down the centre of the ditch. The appellant’s principal contention was that, in the absence of clear evidence of title, the “hedge and ditch presumption” applied. The result of applying that presumption was that the boundary between the properties was the lip of the ditch on the defendants’ side.
Held The appeal was allowed.
1. The judge had thought that, provided there was somewhere in the coveyancing documents evidence from which to infer the position of the boundary between the plaintiff’s land and that of the defendants, that was decisive.
2. He examined the 1926 ordinance survey sheet which had been attached to the 1963 conveyance, but erred by seeking to draw conclusions from the plan.
3. That plan would not have been effective to convey the land on the site of the ditch if it belonged to the plaintiff. The defendants’ predecessors could not, in 1963, by reference to the ordinance survey or any other plan, convey land which did not belong to them.
4. The explanatory memoranda of the Land Registry made it plain that the title plan only indicated the general boundaries to the land registered and left the exact line of any boundary undetermined.
5. The judge had concluded that, but for the interpretation of the defendants’ conveyancing documents, he would have applied the hedge and ditch presumption, viz that the hedge was on the plaintiff’s side of the ditch and that the boundary would have been the lip of the ditch on the defendants’ side.
Geraint Jones (instructed by Archer & Archer, of Ely) appeared for the appellant; the respondents appeared in person.
