Boundaries and the hedge and ditch rule

It is well known that boundary disputes can be disproportionately costly and take many years to resolve - it is easier therefore, if the boundary can be determined before litigation is commenced. For farmers and landowners in particular there is one legal presumption that can prove useful; this is known as the hedge and ditch rule (“the Rule”). The most recent case on the Rule also outlines some of the other tools that are available when dealing with determining a boundary.

The Rule states that when land of adjoining owners is separated by a hedge alongside a ditch then, in the absence of any evidence to the contrary, both the hedge and ditch will belong to the owner of the land on the same side as the hedge. It is a rule that has been applied since at least the early 19th Century but the two presumptions on which it is based were set out by the court in 1999, in a case called Alan Wibberley Building Limited v Insley (1999). These two presumptions are that:

1. the ditch was dug after the boundary was drawn; and that
2. the ditch was dug and the hedge grown in the following manner:

“a person making a ditch cuts into the very extremity (ie, boundary) of his own land and he will throw the soil that he digs out onto his own land and subsequently plants a hedge on it (this was the rule explained in Vowles v Miller (1810) 3 Taunt. 137)”

In the recent case of Parmar v Upton (2015), the court reiterated the Rule and applied it to the facts before it. The facts were this. The claimant, Mr Upton, owned a property which included a house and agricultural land which he bought in 1997. The adjoining land was developed for housing. The boundary in question was between Mr Upton’s property and the adjoining new houses. Mr Upton’s claim was essentially that Mr Parmar, being an owner of one of the new houses, had trespassed on Mr Upton’s land. To prove that this trespass had occurred, the correct boundary needed to be determined.

This determination depended on Mr Upton showing that the ditch on the boundary belonged to him. This ditch extended beyond the extent of Mr Parmar’s land and there was evidence that there had formerly been a hedge on Mr Upton’s side of the ditch. Mr Parmar argued that the conveyance of Mr Upton’s land only transferred the land up to the former hedge line on Mr Upton’s side of the ditch, not the land on Mr Parmar’s side of the former hedge.

The Court of Appeal agreed with the Judge in the original case. The two pieces of land had always been in separate ownership and that there was clear evidence from historic conveyances and Ordnance Survey (OS) maps of a hedge and a ditch on the boundary.

The Court of Appeal, after careful consideration of the historic conveyances, concluded that:

1. there were enough features on the boundary to permit the hedge and ditch rule to apply;
2. the two presumptions set out in the 1999 case were not rebutted by Mr Parmar; and
3. the ditch was dug at the very extremity of Mr Upton’s land by the historic owners with the soil being thrown back onto Mr Upton’s land and a hedge planted on top.

Therefore the ditch belonged to Mr Upton and Mr Parmar failed in his appeal against the earlier decision that he had trespassed.

Two further noteworthy points arose from the judgment:

1. the hedge in question had largely disappeared, indicating that a full hedge is not necessarily needed at the time that the case is brought in order to rebut the two presumptions;
2. it is not a necessary part of the two presumptions to show that the ditch was created to indicate the boundary of the land, as opposed to it being simply for drainage.

It is clear that the hedge and ditch rule remains useful, particularly as the Land Registry plans are only indicative as to boundaries. This case also shows that there are a variety of tools available to determine boundaries, such as:

• historic OS maps (which may indicate different features or features which have subsequently disappeared due to development, for example); and
• pre-registration title deeds or unregistered title deeds (which may explain the boundary in the body of conveyances, or might contain plans which indicate the same).

In addition the Land Registry can send an OS surveyor to determine the actual boundaries to land to clarify the title plan.