THE HEDGE AND DITCH RULE – OUTDATED?

By Emily Wilson

CHARTERED LEGAL EXECUTIVE

 

Often, people turn to the title to the land to ascertain ownership of boundaries however, all too frequently the title can be silent on this point.

 

Land Registry title plans are not said to be definitive and instead are for identification purposes only.

 

There is a presumption as to ownership of boundaries where there is a hedge and a ditch running along the boundary of a parcel of land – it is said that the ditch was dug after the boundary was agreed between the owners of the adjoining parcels of land.  The owner of the boundary is said to have dug the ditch along the edge of their boundary, and then threw the soil into a pile along their land behind them.  The hedge was then planted on this bank of soil, and the boundary lay at the outer edge of the ditch.

 

This is, however, a presumption and is therefore not always the case when it comes to where the true position of the boundary is.  The presumption can be rebutted on the facts of the case.  For example, if it is found that the two parcels of land were in common ownership when the ditch was dug. Topographical evidence, as well as historic title deeds and other evidence, is also used by the Court in ascertaining ownership of boundaries.

 

Within the case of Parmar and others v Upton [2015] EWCA Civ 795, the hedge and ditch presumption was upheld, although significant costs were incurred in the dispute which lead to the decision.  Although the hedge and ditch presumption dates back to 1810, this case proves that the hedge and ditch presumption is still relevant and used in the determination of ownership of boundaries.  The hedge and ditch rule may be old – but it is still relevant.