Don't hedge your bets

A rule that has governed land boundaries for centuries has had another outing in the Court of Appeal says commercial property agent Prop-Search.

In this recent case, the Court had to consider the boundary between what had once been woodland - now houses - and a farm.  And in assessing the case, the judge applied the ‘hedge and ditch’ rule; a presumption that when digging a ditch along the boundary of land, the person digging the ditch will cut it to the extremity of his own land and throw the soil over his shoulder back onto his own land.  Commonly, a hedge will then be planted on top of the newly formed bank.

Samantha Jones, an Associate Director of Prop-Search, said: “In practical terms this means that where there is a hedge and adjacent ditch dividing the land of two neighbouring properties, the boundary line can be assumed to run along the edge of the ditch furthest from the hedge.”

In Parmar v Upton, the claimant Mr Upton owned the bulk of Birchy Farm near Solihull and Mr Parmar purchased land immediately to the south-east of this in 1997.  Following Mr Parmar's residential development on his land, Mr Upton brought an action claiming that the development had trespassed on his boundary. 

Mr Parmar argued that the plan attached to the 1997 conveyance to Mr Upton indicated that the true boundary was the hedge and that therefore the ditch and the narrow strip of land between the hedge and ditch belonged to him. 

The Court of Appeal found that the judge in the County Court was correct to find that there was enough topography along the disputed boundary to permit the hedge and ditch rule to apply and there was nothing to rebut the hedge and ditch presumptions.  Furthermore, that the plan attached to the 1997 conveyance warned readers that it was for identification purposes only and therefore could not be relied upon as delineating the precise boundaries.

Samantha Jones concludes: “The case has given a good example of how the hedge and ditch rule is to be applied.  It also shows that the hedge and ditch rule continues to serve a valuable means of enabling neighbouring owners of rural land to avoid the invariably disproportions costs and stress of having to litigate boundary disputes.”

“However, this is not a hard and fast rule, it is a presumption and it is important to understand the make-up of the rule and to consider the history of the land or properties involved.  If for example, the ditch was dug when the fields were in the same ownership, the presumption cannot apply.  In those cases, the boundary is determined by the deeds but unfortunately often those are not detailed enough to easily answer the question.”

“It is important to remember that a poor quality plan from 30 years ago often isn’t clear enough to work out where the paper-thin line of the boundary actually is.  For example, a hedge on an Ordnance Survey map is a thin black line, but the hedge could be 10 feet wide - is the boundary on one side or the other, or down the middle?  And if someone is building houses, then 10 feet can make all the difference.”

Further information or advice can be obtained from Prop-Search - Tel: 01933 223300 / 01604 492000 or its website: www.prop-search.com