The “Hedge and Ditch Rule” – still applicable?
Boundary disputes are costly and time-consuming affairs. All parties involved should immediately consider whether open correspondence can avoid the need for formal litigation.
Some useful presumptions exist to assist parties in determining boundaries before even a surveyor’s involvement is required. One of these presumptions is particularly important for farmers and landowners.
Known as the “hedge and ditch rule”, it is commonly presumed that, if two parcels of land are separated by a hedge and a ditch, the owner whose land the hedge is situated on is also in possession of the ditch. Therefore, the presumed boundary line will not be in the middle of the ditch (as is sometimes the misconception) but on the opposite side of the ditch from the hedge.
The “hedge and ditch rule” dates back to the early 19th Century, but in 1999, in a case called Alan Wibberley Building Limited vs Insley, the rule was separated into two distinct presumptions:
- The ditch must have been dug after the boundary was drawn; and that
- a person making a ditch cuts into the boundary of his own land and throws the soil back onto his own land. He then uses this soil as a foundation for the hedge.
The judgment in the more recent case of Parmar v Upton (2015) held that it still applied; a view subsequently supported by the Court of Appeal.
Where two pieces of land have always been in separate ownership and there is clear evidence from historic conveyances and Ordnance Survey maps of a hedge and a ditch on the boundary, the rule will still be applicable.
The Parmar case also considered these points:
- A full hedge is not necessarily needed at the time that the case is brought; and
- it is not necessary to show that the ditch was created to indicate the boundary of the land, as opposed to it being simply for drainage.
On the basis of the above, the tried and tested hedge and ditch rule is still useful in today’s world; perhaps even more so now that Land Registry title plans are often incorrectly used for definitive boundary measurements. In fact, the Land Registry itself states that all boundaries shown on their title plans (unless previously and specifically determined by agreement between neighbours) are “general boundaries” and only ever intended to show the “approximate” positions.
Linda Crawford is a solicitor in the property department at Barker Gotelee, Suffolk Solicitors.
Property Solicitors – for more information on our range of legal property services, please call the team on 01473 611211 or email [email protected]
This article appeared previously in East Anglian Daily Times October 2017.
