It is well known that boundary disputes can be unreasonably expensive and take many years to be resolved. It is therefore easier if a dispute is determined before court action is commenced. For farmers and landowners, in particular, it is useful to know about the age-old legal presumption of the ‘Hedge and Ditch Rule’.
The Hedge and Ditch Rule works on the presumption that when the physical boundary of a property consists of a ditch alongside a hedge, the land upon which both the hedge and the ditch are located belong to the landowner where the hedge is growing. As with all presumptions, there can be evidence that contradicts this assumption, but the rule is a starting point.
The rule first emerged in the judicial system in the early nineteenth century and is based upon the manner in which ditches were dug and hedges laid. It was customary to mark a boundary with a ditch – right up along the edge of the boundary. The earth dug out would be piled on the ditch owner’s land and run the length of the ditch. The hedge would then be planted along that ridge of dug out earth. The boundary between the two landowners would therefore not be the middle of the hedge or the middle of the ditch but the side of the ditch furthest from the hedge.
These were the presumptions made by the Court of Appeal in July 2015 in a case which revolved around a trespass onto a neighbour’s land. Whether a trespass had occurred, could only be established when it was known where the correct location of the boundary was.
On the evidence, the trespasser could not show that presumptions under the Hedge and Ditch Rule could be overturned. The Court also used evidence from historic conveyances and OS maps that there had been a hedge in place, even though by the time of the case, the hedge had more or less disappeared. The reason for the creation of the ditch was also considered. The Court concluded that 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.
Cases such as this highlight the importance of old deeds and OS maps, even in practice today. It is also a valuable reminder that Land Registry plans are not definitive in showing where the true boundaries of a property lie.
For further information or advice, please contact Richard Freeman-Wallace on 0191 232 8345 or email: Richard.Freeman-Wallace@hay-kilner.co.uk