Boundaries – Hedge and ditch rule – Adjoining properties in rural area – Respondent alleging trespass by appellant – Location of boundary – Whether defined by application of hedge and ditch rule – Whether presumptions underlying rule rebutted on facts of case – Appeal dismissed
The respondent owned a farm comprising a house and agricultural land at Tidbury Green near Solihull. The appellant owned a neighbouring property, on part of which he carried out a residential development in 1998 to create two new properties, which he then sold on. The respondent brought proceedings in the county court, claiming that the development involved a trespass on his property. An issue arose as to where the boundary between the properties lay. The appellant contended that it was defined by the conveyancing history, which included a conveyance of his land in 1925 and, in particular, the 1997 conveyance by which the respondent had acquired his land.
Allowing the claim, the judge found that the boundary of the respondent’s property was defined by a ditch, bordered by a hedge, which, until at least 1925, had run along almost the whole of the disputed boundary and the former presence of which was now evidence by a mound marking where the soil from the ditch had been thrown. In reaching his conclusion, the judge applied the “hedge and ditch rule”, under which the boundary was presumed to lie along the edge of the ditch on the far side from the hedge. That rebuttable presumption, as described in Vowles v Miller (1810) 3 Taunt 137, was based on the premise that a person could not dig a ditch on another’s land, but that he would usually cut it to the very edge of his own land; the soil from the ditch would have to be kept on his own land and he might then plant a hedge on top of it. The appellant appealed.
Held: The appeal was dismissed.
While the hedge and ditch rule might appear quaint to many modern lawyers, it continued to serve a valuable purpose as a means of enabling neighbouring owners of rural land to avoid the wholly disproportionate cost and stress of having to litigate a boundary dispute. It involved two presumptions, first that the ditch was dug after the boundary was drawn and, second, that it was dug and the hedge grown in the manner described in Vowles. The rule made sense because landowners did not, in general, reserve narrow and inaccessible strips of land along the edge of property conveyed which abutted an established boundary with land in separate ownership: Alan Wibberley Building Ltd v Insley [1999] 1 WLR 894; [1998] 2 EGLR 107 applied.
Where a disputed boundary was created by a conveyance or transfer of land which was formerly in common ownership, that conveyance was of primary and frequently decisive effect in resolving any dispute as to the position of the boundary thereby created. The same could be said of a boundary agreement between owners on either side of a disputed boundary. By contrast, where, as in the instant case, the relevant ownership boundary was clearly created prior to the earliest surviving conveyance, so that those which survived dealt merely with the land on one or the other side of that boundary, then the conveyancing history was prima facie unlikely to be decisive and was frequently of little assistance.
The hedge and ditch rule had settled the boundary of the respondent’s property before 1997. The 1997 conveyance itself was therefore of no significance as evidence for the purpose of rebutting the presumptions underlying the hedge and ditch rule. In any event, it stated both in the parcels clause and on the attached plan that the delineated boundaries were for identification purposes only. Where a conveyance refers to an attached plan for identification purposes only, it could not be relied on as delineating the precise boundaries.
Nothing in the other conveyancing documents displaced the application of the rule. In particular, although the earlier 1925 conveyance described the attached plan as more particularly delineating the boundaries, rather than showing them for identification purposes only, the plan had to be interpreted by reference to the relevant factual matrix, which included the features on the ground visible at the time of the conveyance. Anyone seeking to interpret the 1925 conveyance at the time would have seen a hedge and a ditch and a little more research would have revealed that the land conveyed lay alongside an ownership boundary which had existed for many years prior to 1925, and which was not being created for the first time by the 1925 conveyance. The intelligent interpreter of the 1925 conveyance would think that the edge of the land being conveyed was likely to correspond with the existing ownership boundary along that line, rather than convey more land than the vendor owned. Armed with that understanding of the factual matrix, the intelligent observer would then have concluded that the boundary intended to be identified by the 1925 plan was that which would be identified by the application of the hedge and ditch rule.
The judge had identified sufficient topography to support the existence of the hedge and ditch which had previously existed, including a mound, representing the earth presumed to be thrown back on his own land by the owner when digging the ditch. The presumption was that the ditch along the disputed part of the boundary was dug by the respondent’s predecessors as owners of the farm, at the very extremity of their own land, throwing back the soil and planting a hedge on it. There was nothing in the evidence to rebut that presumption.
Even assuming that the ditch had been dug for drainage purposes, rather than to demarcate a boundary, it was not a necessary part of the presumptions underlying the hedge and ditch rule that the ditch should have been dug for boundary purposes. Farmers would generally dig and then maintain ditches, at some expense, for the economic purpose of draining farmland so as to improve its yield, rather than for the purpose of precisely defining their boundaries with their neighbours. Nonetheless, the farmer would dig the ditch at the extremity of his own land because he could not cut into his neighbour’s soil. Indeed, the first presumption of the hedge and ditch rule, namely that the ditch was dug after the boundary was drawn, suggested that the farmer already knew where the boundary was and had no need to mark it.
Further, while the history of the land gave rise to the possibility that the ditch had not been dug purely by the owner of the farm within the confines of his own land, and alternative explanations were available, that was a matter of mere speculation and was insufficient to displace the second presumption of the hedge and ditch rule. Presumptions had to be rebutted by evidence, rather than by mere speculation. The evidence had to demonstrate at least a probability that the events inherent in the presumption did not occur. In any event, the most likely of the possibilities was that the hedge and ditch did run along the boundary. It followed that the judge had been correct in his application of the hedge and ditch rule as decisive of the boundary dispute.
George Laurence QC and David Warner (instructed by Hadgkiss Hughes & Beale, of Birmingham) appeared for the appellant; Jonathan Gaunt QC and Matthew Haynes (instructed by Sydney Mitchell LLP, if Birmingham) appeared for the respondent.
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Sally Dobson, barrister
