Where two properties are divided by a hedge and a ditch or a bank and ditch, there is a presumption that the boundary is along the far side of the ditch from the hedge or bank.
This presumption is really in two parts:
That the ditch was dug after the boundary was drawn. This presumption can be rebutted by strong evidence to the contrary, such as where the ditch and bank or hedge were created whilst the lands on both sides were in common ownership. The presumption will not be rebutted by evidence of possession, such as work done tending the hedge or cleaning the ditch.
That a landowner would cut the ditch at the very extremity of their own land, throwing the soil back onto their own land to create the bank on which a hedge may then be planted. This part of the presumption can also be rebutted (for example, by evidence that the ditch is not man-made).
The claimant (C) owned a property which included a house and agricultural land. The property was transferred to C in 1997 by a conveyance (1997 Conveyance). Following the residential development of neighbouring property, C brought an action in trespass against a number of the owners of those neighbouring properties. This led to a boundary dispute in respect of the boundary between C’s property and the neighbouring properties. C subsequently settled with all but one of the owners of the neighbouring properties.
A ditch ran along the whole of the disputed boundary, and a hedge formerly grew immediately to the north-west of the ditch. The ditch continued beyond C’s land. The land on either side of the disputed boundary had been in separate ownership at all material times. The County Court judge saw nothing sufficient to displace the presumptions underlying the hedge and ditch rule and resolved the boundary dispute in favour of C.
The defendant (D) successfully applied to admit fresh evidence on appeal. As a result, the Court of Appeal conducted a fresh analysis of whether D had rebutted the presumptions underlying the hedge and ditch rule. The fresh evidence concerned the history of that part of the boundary which continued beyond C’s land into land that had, at one point, been in common ownership.
D argued that the first step was to establish whether C had title to sue in trespass under the 1997 Conveyance of land to C. Leaving aside adverse possession, the claim in trespass depended upon C proving good title to that part of the disputed boundary on D’s side of the hedge. D argued that the 1997 Conveyance only conveyed the land up to the hedge line, so C had no title to sue.
The Court of Appeal dismissed D’s appeal. The admission of fresh evidence did not persuade the court to depart from the conclusion at first instance that there was nothing to rebut the hedge and ditch presumptions. The new argument about title to sue for trespass based on the 1997 Conveyance failed as a matter of substance.
The court held that the correct order of analysis was first to ask whether the hedge and ditch rule had settled the boundary by 1997 and then to construe the 1997 Conveyance in the light of that analysis.
Hedge and ditch rule
The court concluded that the topography was sufficient to permit application of the hedge and ditch rule along the disputed boundary. There was a ditch and an adjacent hedge, even though the hedge had largely disappeared.
The first presumption was not rebutted in relation to the ditch along the disputed part of the boundary.
D attempted to rebut the second presumption by arguing that the ditch was a drainage ditch rather than a boundary ditch. However, the court saw nothing in the authorities to show that the ditch must be dug to demarcate a boundary. On the contrary, farmers generally dig and then maintain ditches for the economic purpose of draining farmland to improve its yield, rather than to define their boundaries. The first presumption suggests that the farmer already knows where the boundary is and has no need to mark it out.
D also argued that, viewed as a whole, the ditch could not be regarded as an exercise carried out purely by a former owner of C’s land within the confines of that land. It started and ended on land owned by an adjacent landowner, so the adjacent landowner might have dug it within their own land. The court accepted the force of this argument, which provided some basis for undermining the second presumption. However, there were at least two other possibilities and the presumptions must be rebutted by evidence, rather than by speculation. The evidence must demonstrate at least a probability that the events inherent in the presumption did not occur. The defendant’s fresh evidence did not persuade the court to depart from the conclusion at first instance.
Relevance of conveyancing history
The court doubted whether the conveyancing history had any relevant effect on the disputed boundary. It was common ground that this boundary separated land which had been in different legal ownership for many years previously. The only relevance of transactions involving parties on one side of the boundary only was as evidence to help understand what was then believed to constitute the boundary.
The conveyancing history evidence was not sufficient to rebut the hedge and ditch presumptions. The 1997 Conveyance stated that the delineated boundaries were for identification purposes only. Therefore, it had no significance as evidence for the purpose of rebutting the presumptions. A 1925 conveyance to D’s predecessors confirmed rather than rebutted the presumptions. The plan to that conveyance had to be interpreted by reference to the features on the ground visible at the time of the conveyance. Those features included a hedge and ditch. On the facts, an intelligent interpreter of the conveyance at the time would have concluded that the boundary on the plan was the boundary under the hedge and ditch rule.
Claimant’s title to sue in trespass
The court disagreed with D’s argument that the 1997 Conveyance to C only conveyed the land up to the hedge line. Where a conveyance or transfer refers to an attached plan for identification purposes only (as in this case), it cannot be relied upon as delineating the precise boundaries, and only indicates the general boundaries. Where it only indicates general boundaries, and the dispute is about the precise boundary, inferences must be drawn from existing topographical features, or other evidence, including inferences derived from the hedge and ditch rule.
In this case, the relevant topographical features consisted of a hedge and a ditch. The intelligent observer would know that the land was being conveyed along an ownership boundary created many years ago, apparently marked by an old hedge and ditch. There was no evidence that C obtained any less land than his predecessors. Therefore, the 1997 Conveyance included land to the opposite side of the ditch under the hedge and ditch rule.
It was common sense that a seller would not intend to retain a narrow strip of land on the edge of the property transferred, which abuts an established boundary with land in separate ownership, without good reason such as preservation of a ransom strip to share in development value.
This case is a good example of how the hedge and ditch rule is to be applied. It also shows, as noted in the judgment that the hedge and ditch rule continues to serve a valuable purpose as a means of enabling neighbouring owners of rural land to avoid the invariably disproportionate cost and stress of having to litigate a boundary dispute. The Court of Appeal drew attention to the amount of time spent by the courts, judges and counsel on this particular dispute, which it described as modest, in terms of value at risk other than costs.
Michael Menzies Baird