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Boundary disputes: hedge and ditch rule

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Posted by Mary Rouse on 04 January 2016

Mary Rouse - Property Litigation Lawyer
Mary Rouse Partner

A recent boundary dispute in the Court of Appeal has provided a useful reminder not only of the Court’s approach in boundary disputes, but also of the relevance of the “hedge and ditch” rule is establishing the position of a boundary.

This case involved a dispute between a landowner, Mr Upton, and his neighbour, Mr Parmar. Mr Upton, relying on the hedge and ditch rule, accused Mr Parmar of trespassing on his land by having filled in the ditch on the far side of his hedge and then developing on it.

The ‘hedge and ditch’ rule is well understood

The ‘hedge and ditch’ rule is made up of two presumptions outlined in 1810 by a judge who decided that it was, firstly, reasonable to presume that a farmer digging a ditch would do so at the ‘furthest extremity’ of his land, and secondly, that he would pile the soil on his side of the boundary to create a bank on which a hedge might be planted. This presumption has served to resolve many disputes between landowners where there is no clear evidence to suggest that the boundary line would be elsewhere. This principle was upheld in a 1998 boundary dispute case where the presiding judge noted: "I can see no basis for trivialising this principle. In large areas of the countryside it is well understood and has indeed ensured that those with a boundary formed by a hedge and ditch know exactly where they stand without recourse to legal advice or litigation."

Background to the case

Mr Upton had bought Birchy Farm in 1997. His neighbour, Mr Parmar had bought land adjacent to the farm in 1991 on which he had built a number of properties which he had sold. Mr Upton had claimed that several of the properties encroached on his land and had instigated proceedings, most of which had been settled by the time of this Appeal, save the dispute with Mr Parmar. The disputed boundary was marked with a ditch on which one side had been a hedge, and the land either side had been in separate ownership for some time.

Challenge to the hedge and ditch rule dismissed on Appeal

At the original County Court hearing, the judge found for Mr Upton, seeing no reason to depart from the hedge and ditch rule. Mr Parmar, on appeal, provided additional evidence to challenge the rule, arguing that the plan attached to the 1997 conveyance showed that the hedge itself was the boundary and therefore the ditch belonged to him. The court rejected the evidence, finding that the plan relied on an Ordnance Survey map which, it was stated in the conveyance, was to be used for identification purposes only. Mr Parmar also argued that, as the ditch was used for drainage purposes, it did not constitute a boundary. Again the court dismissed this as most ditches are dug for drainage purposes. The court also held that the topographical features of the land in question indicated the presence of a hedge and ditch despite tracts of the hedge having disappeared (such as a line of mature oaks which would have formed part of the hedge).

A common sense approach

The judge held the view that the hedge and ditch rule remained very relevant and, in the absence of any compelling evidence to the contrary, the presumption of the hedge and ditch rule would stand. Boundary disputes are notoriously emotional, time consuming and expensive and the confirmation of this rule helps to preserve a common sense approach to resolving a situation which can, without care, quickly escalate out of control. The disproportionate cost and time taken up by such disputes was summed up thus:

It is only a small mercy that this (together with other issues) has taken two, rather than four days. The result is that the challenge to the applicability of this simple rule has occupied two courts and four judges for no less than six days of painstaking analysis, not to mention time for pre-reading and judgment writing, and the involvement of four counsel, including senior leading counsel in this Court, all in relation to a dispute which, however riveting for the parties, can only sensibly be described as modest, in terms of value at risk other than costs.

About the author

Mary Rouse

Partner

Mary is an experienced property litigation lawyer.

Mary Rouse

Mary is an experienced property litigation lawyer.

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