In the recent case of Parmar and others v Upton the Court of Appeal have confirmed the continuing relevance of the historic “Hedge and Ditch” rule in relation to boundaries.
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. There are in fact two parts to this:
- It is presumed 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, but the presumption will not be rebutted by evidence of possession, such as work done tending the hedge or cleaning the ditch;
- It is presumed 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 Parmar case involved an alleged trespass to a boundary, along which ran a ditch. A hedge formerly grew adjacent to the ditch. The claimant (C) successfully brought a trespass action in the County Court against owners of neighbouring property (D). D appealed but the Court of Appeal dismissed the appeal because the court:
- Was not persuaded to depart from the County Court’s conclusion that there was nothing to rebut the hedge and ditch presumptions.
- Disagreed with D’s argument that the conveyance to C only conveyed the land up to the hedge line. The conveyance only indicated general boundaries. 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 conveyance to C included land to the opposite side of the ditch under the hedge and ditch rule.
This case is a good example of how the hedge and ditch rule is applied to the facts. It also illustrates the value of the rule in enabling neighbouring owners of rural land to avoid the cost and stress of litigating a boundary dispute.
For further information or advice please contact Ika Castka.