England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE No CCRTF 96/0813/C

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM ORDER OF MR RECORDER PARDOE

Royal Courts of Justice

Strand

London WC2

Wednesday, 12th November 1997

B e f o r e:

LORD JUSTICE SIMON BROWN

LORD JUSTICE WARD

LORD JUSTICE JUDGE

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ALAN WIBBERLEY BUILDING LTD

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INSLEY

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(Handed down judgment prepared by

Smith Bernal Reporting Limited, 180 Fleet Street,

London EC4A 2HD

Tel: 0171 831 3183

Official Shorthand Writers to the Court)

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MR I FOSTER (Instructed by Messrs Grindeys of Stoke-on-Trent, Staffordshire) appeared on behalf of the Appellant

MR C MACHIN (Instructed by Challinors & Dickson of Stoke-on-Trent, Staffordshire) appeared on behalf of the Respondent

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J U D G M E N T

(As Approved by the Court )

(Crown Copyright)

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LORD JUSTICE WARD:

This is a boundary dispute. To hear those words, “a boundary dispute”, is to fill a judge even of the most stalwart and amiable disposition with deep foreboding since disputes between neighbours tend always to compel, as this one did, some unreasonable and extravagant display of unneighbourly behaviour which profits no one but the lawyers. Fortunately this appeal is different. Ably argued as it has been by both counsel, it crisply raises a point of law of some importance, especially in rural England and Wales. That question, for the moment quite broadly stated, is this: where adjoining fields are separated by a hedge and a ditch, who owns the ditch? The interest in the case springs from the possibility that there are not just two contenders, namely one or other of the owners of the contiguous fields, but a predecessor in title to one of them. To sharpen the focus of the issue before us, I must set the scene.

The scene is the village of Saverley Green somewhere in the depths of the Staffordshire countryside. For over 150 years of the history revealed to us, the Home Farm and the Saverley Green Farm were in separate ownership. The defendant now owns part of the original Home Farm; the plaintiff part of the original Saverley Green Farm. It was not in dispute that until removal of part of it by the defendant some time in or after 1987 there had been a hedge between those two farms. The judge found on the balance of probabilities that a ditch, as originally dug, ran the full length of that hedge and continued to exist until recently. The ditch and the hedge were likely to have been contemporaneously dug and planted. The ditch was on the Saverley Green side of the hedge.

The parties’ title to their properties must be examined. By deed made in 1920, Home Farm was conveyed to a Mr Beard under this description of the parcels of land:-

"All that farmhouse buildings and land situated and known as Home Farm Saverley Green in the County of Stafford containing by admeasurement 47 acres or thereabouts...”

In 1975 Mr Beard sold to Mrs Burton. That conveyance was differently drafted and the difference is important. By that deed the vendor as beneficial owner conveyed unto the purchaser:-

"All that the property more particularly described in the schedule hereto...

The schedule before referred to:

All that messuage or farmhouse and outbuildings situated and known as Home Farm...together with the land forming the site thereof and used and occupied therewith which said property comprises in the whole 10.39 acres or thereabouts and is more particularly delineated for the purposes of identification only on the plan annexed hereto and thereon edge blue and is more particularly described as follows:-

As would be expected and as was common ground the plans are an exact copy of the Ordnance Survey map showing the fields as numbered. Field 6751 adjoins Field 7751 which is part of the Saverley Green Farm. This is the boundary with which we are concerned.

The defendant owns Saverley Cottage which he acquired in 1978. It lies across the top of part of both fields with the disputed boundary between the fields forming the stem of the T. In 1985 he bought a tiny corner of the Home Farm field 6751 from Mrs Beard and for a length of 87 feet this addition to his garden adjoins the Plaintiff’s field 7751. The terms of that conveyance are rightly agreed to be immaterial for present purposes.

As for the Saverley Green Farm, the plaintiff’s predecessor in title took a conveyance in 1921 of:

"All that messuage farmhouse or tenement with the barns stables outbuildings and hereditaments thereto belonging called the Saverley Green Farm...formerly in the occupation of... Richard Harvey...and also all those several closes pieces or parcels of land ... commonly known by the names and containing by admeasurement the several quantities hereinafter mentioned that is say ...(there follow the names of a number of fields with their acreage.)...”

By a conveyance made in 1984 the plaintiff acquired:-

"All those plots pieces or parcels of land situate at Saverley Green in the County of Stafford and which are for the purposes of identification only delineated on the plan annexed hereto and thereon edged blue which said land was (with other property) conveyed...by a conveyance dated...1921...”

The plan appears to have been drawn to correspond to - but not to be an exact copy of - the Ordnance Plan and it shows Field 7751 forming the eastern boundary with Home Farm of the land thus conveyed.

The dispute arose because sometime in about 1987 the defendant scrubbed out the hedge dividing the two fields with which we are concerned and erected a wood post and wire fence along the old line of the far lip of the ditch and perhaps was beyond that line. The plaintiff alleged trespass and sought relief accordingly.

Mr Recorder Pardoe Q.C. found for the plaintiff and on 30th November 1995 declared the true line of the boundary between these properties, ordered the plaintiff to erect a fence along that line restrained both parties from entering the other’s land and awarded the plaintiff damages of £900. The defendant appeals against that order.

The issue joined before the Recorder was whether or not, as the defendant contended, the boundary was fixed by application of the presumption that the person who dug the ditch dug it at the extremity his land and threw the soil onto his own land to make the bank on which the hedge was planted, or whether, as the plaintiff contended, that presumption did not arise where the land had been conveyed by reference to the Ordnance Survey map which delineated the boundary. The Recorder applied Fisher -v- Winch [1939] 1 K.B. 666 and Davey -v- Harrow Corporation [1958] 1 Q.B. 60 and held that:-

"The boundary of the land conveyed to Mrs Burton by the 1975 conveyance was the centre line of the hedge between fields 6751 and 7751. It follows that the boundary towards field 7751 of the part of field 6751 conveyed to the defendant by Mrs Burton in 1985 was similarly the centre line of the then existing hedge. The conveyance of (Saverely Green) Farm which was also by reference to OS Field numbers and acreages leads to a conclusion correlative to one I have just come to. I conclude that plaintiff’s title extended similarly to the centre line of the hedge between fields 6751 and 7751.”

The appeal was launched on the basis that the Recorder erred in not applying the hedge and ditch presumption, contending in the Notice of Appeal that Fisher -v- Winch did not apply as:-

"(i) In this case there had never been, an ownership in relation to the plaintiff’s title and the defendant’s title;

(ii) Prior to 5th February 1975 neither title had been conveyed by reference to Ordnance Survey maps or plans; and

(iii) The plaintiff’s title has never been conveyed by reference to Ordnance Survey maps or plans.”

When granting leave to appeal on 14th June 1996 Millett L.J. said this:-

"It seems to me that it is arguable that what follows is this:- First, prior to 1975 the mutual boundary was on the plaintiff’s side of the ditch, the hedge and ditch belonging to the defendant’s predecessor in title, since there was then nothing to exclude the presumption. Secondly, the hedge and ditch have never been conveyed to the plaintiff who has no paper title to them. Thirdly they were, no doubt inadvertently, excluded from the conveyance to the defendant’s vendor. If that is right, then the paper title is still vested in the vendor of the 1975 conveyance to the defendant’s vendor. One or other of the parties may have established title by adverse possession, but no issue as to this was before the Recorder. He was solely concerned with the paper title. Whether it is really worth pursuing the dispute before this court in order to establish a new starting position under which neither party has a paper title to hedge and ditch is a matter for the parties.”

The case has been presented to us on the basis that the ditch did remain vested in Mr Beard; and by deed dated 9th August 1996 made between the executors of Mr Beard of one part, Mrs Burton of the second part and the defendant of the third part, title to the ditch has now passed to the defendant. The principal submission is that the plaintiff never owned the ditch, and so could not complain of trespass upon it.

Central to the appellant’s submission is the proposition that prior to the 1975 conveyance the boundary between the two farms had been fixed by operation of the hedge and ditch presumption and that, having once been fixed, it could not and did not change.

The origin of the presumption can be traced back to observations of Lawrence J. in the course of argument in Vowles -v- Miller [1810] 3 Taunt. 137 when he said:-

"The rule of about ditching is this. No man, making a ditch, can cut into his neighbour’s soil, but usually he cuts it to the very extremity of his own land: he is of course bound to throw the soil which he digs out, upon his own land; and often, if he likes it, he plants a hedge on the top of it...”

By 1902 this presumption was, per Collins M. R., “well - established”: see The Earl of Craven -v- Pridmore & ors [1902] 18 Times L.R. 282,283. As that case made plain the presumption is a rebuttal one, the question there being, “how far the presumption had been displaced by evidence of acts of ownership on the part of the defendants.”

Not to treat this presumption as rebuttable was the error identified in Fisher -v- Winch. Since this case so shaped the Recorder’s decision, I must analyse it in some detail. The facts were that the land of both parties had been in common ownership. The first part of the estate to be conveyed was the land sold to the defendant. The terms of that conveyance were to all intents and purposes identical to the 1975 conveyance to Mrs Brewer and thence to the defendant in this case, that is to say it was a conveyance of land described in a schedule which, per Sir Wilfrid Greene M.R., at p.670:-

"Sets out by reference to the numbers on the Ordnance map the different parcels with their description and acreage which were comprised in the conveyance. That conveyance had a plan delineated upon it, and in that plan the Ordnance Survey numbers with the acreage which corresponds with the Ordnance Survey acreage, are shown, and it quite clear from a comparison of that plan which the language of the schedule that the plan is copied from the Ordnance Survey.”

The conveyance of the remainder of the estate to the plaintiff was of “land...containing...3.261 acres...numbered 214 on the Ordnance Survey map...which...by way of identification only is delineated on the plan drawn whereon...” That conveyance is, therefore, even more closely linked to the Ordnance Survey than the 1984 conveyance of part of Saverley Green Farm to the plaintiff. The following observations of the master of the Rolls are therefore as applicable to the case before us as they were to the matter before him. He said:-

“It is to be noted in comparing these two conveyances that there is a difference in wording, because the conveyance under which the defendant claims uses the plan and the schedule as descriptive, and not as merely for identification, whereas in the later conveyance the measurement is given and the number is given, but the plan is only “for greater clearness and by way of identification only.” However, once the question is decided as to what the defendant’s predecessor in title got under his conveyance no difficulty arises as to what the plaintiff’s predecessor in title got under his conveyance, and the real question is, what did the defendant get?”

It was necessary in that case to led expert evidence:-

"as to the universal practice in making up the Ordinance Survey maps. The effect of that evidence is that where there is a hedge or a fence running along a parcel, then that is the boundary which is taken by the Ordnance Survey for the purpose of delimiting the parcels which are shown on the maps....Where the party’s title is derived a document which refers to the Ordinance map, it is necessary to look at the Ordnance map and ascertain where the boundary on that map is truly positioned....The boundary referred to on the Ordnance Survey map is the centre line of the hedge and the fence. That being so, when the conveyance is look at, the boundaries on which are traced by reference to the Ordnance Survey map, and the acreage of which is fixed by reference to the Ordnance Survey, it is established beyond possibility of question what the boundary is.”

The conclusion of the Master of the Rolls was:-

"That is really an end of the case. The appeal has been necessary because, as I have said, the learned judge, thinking that the governing matter was the presumption, and not observing that the presumption only comes into operation in case where the boundary is not deliminated in the parcels to the conveyance, decided the other way.” (My emphases added.)

His earlier remarks are important in dealing with Mr Foster’s submissions on the Appellant’s behalf. At the beginning of his judgment, he said:-

"The dispute between the parties is as to the precise boundary between their respective properties. The learned judge decided this case in favour of the defendant upon one point alone. He proceeded upon the footing that a presumption, which is well known presumption, was to prevail - namely that where there is nothing else to identify the boundary and there is a ditch and a bank, the presumption is that the person who dug the ditch dug it at the extremity of his land and threw the soil on his own land to make the bank. That, of course, is a very convenient rule of common sense which applies in proper cases in regard to agricultural land where there is no other boundary otherwise ascertainable. ...The learned judge, thinking that the case was governed entirely by that presumption, decided in favour of the defendant by the learned judge did not direct his mind to what in this case is the initial question - namely, what, on the true construction of the conveyances to the parties, is the boundary of their respective land. If an examination of those conveyances coupled with any evidence that is admissible for the purpose of construing them shows what the boundary is, there is no room at all for operation of that presumption. The learned judge did not direct his mind to that question, but in my opinion the present controversy is solved without difficulty when that question is considered.” (My emphasis added.)

In agreeing MacKinnon L.J. drew attention a passage in the judgment of Scrutton L.J. in C ollis -v- Amphlett [1918] 1 Ch. 232, 259:-

"There is undoubtedly a popular belief in some parts of the country which has found its way into books that the owner of a hedge is also the owner of a space outside it; sometimes said to be four feet from the base of the bank on which the hedge stands. I am not aware of any legal authority for this broad proposition.”

Goddard L.J. added:-

"This matter of the respective positions of the fence and the ditch as affording evidence of the boundary was referred to in the defence and referred to throughout the trial - which I think possibly explains some of the confusion that arose - as a custom. It is not a custom at all when rightly understood, but it is a mere presumption. It is a very different thing from a custom. This presumption is very often decisive where there is no evidence at all as to what the boundaries are, but, like any other presumption it is rebuttable , and very often it can easily be rebutted by the production of title deeds. In this case, when the title deeds are examined, there is no room for the operation of the presumption at all.”

In Davey -v- Harrow Corporation [1958] 1 Q.B. 61 Lord Goddard C.J. said at p.69:-

"After that case ( Fisher -v- Winch ) and this, courts in future can take notice of this practice of the Ordnance Survey (that the boundary line on the map indicated the centre of the existing hedge) as at least prima facie evidence of what a line on the map indicates.”

These decisions seem to me to compel this approach to this appeal:-

1. “The initial question” is “what on the true construction of the (two) conveyances to the parties (the one to the plaintiff, the other to the defendant) is the boundary of their respective land.”

2. The plaintiff’s 1984 conveyance in the wide language used is insufficient to identify the parcels precisely. The plan is for identification only, the effect of which, per Megarry J. in Neilson -v- Poole [1969] 20 Property and Compensation Reports 909, 916:-

"Seems... to confine the use of the plan to ascertaining where the land is situated and to prevent the plan from controlling the parcels in the body of the conveyance.”

All this conveyance tells one is that the land was part of Saverley Green Farm as it was conveyed in 1921. The precise line of the boundary cannot be identified from the conveyance but upon its proper interpretation, it cannot be doubted that the land being conveyed, extended up to its boundary with Home Farm, wherever that boundary was.

3. Since “the presumption only comes into operation in cases where the boundary is not delimited in the parcels to the conveyance” then, in the absence of any other evidence, it can be presumed that the boundary is the Saverley Green edge of the ditch and accordingly that the Saverley Green Farm does not include the ditch itself. This presumption is, however, rebuttable.

4. Turning to the defendant’s conveyance (which it is agreed for all practical purposes means the 1975 conveyance), this defines the parcels by reference to the Ordnance Survey map and so “it is established beyond possibility of question what the boundary is” viz., the middle of the hedge. There is, therefore, “no room at all for the operation of the presumption.” Consequently, as the defendant now accepts, the ditch was not conveyed to him.

5. If the two parcels were in common ownership, then “once the question is decided as to what (the first purchaser) got under his conveyance, no difficulty arise as to what the (purchaser of what can therefore only sensibly be understood to be the remainder of the estate) got under his conveyance.”

6. The fact that the parcels were not conveyed from a common owner does not render inoperable the rules either that the first task is to construe the respective conveyances or that the presumption has its proper place when “there is no boundary otherwise ascertainable.”

I apprehend there would not be much quarrel with those conclusions, and so I turn to the defendant’s amended case which I understand to be this:-

•. By virtue of proposition 2 and 3 above, the plaintiff’s land extends only to the edge of the ditch.

•. By virtue of proposition 4 above, the defendant was conveyed land only to the middle of the hedge.

•. The ditch, which by operation of the presumption was part of the old Home Farm before 1975 but which was not included in the land conveyed in 1975, must, therefore, still be a part of Home Farm and must still be owned by the original vendor, Mr Beard.

I cannot accept that reasoning which in my judgment betrays these errors:-

1) There is no law that the owner of the hedge owns the land beyond it - see Scrutton L.J. cited above. There is no custom to that effect - see Goddard L.J. above. It is only a presumption.

2) By misunderstanding the operation of the presumption the defendant has elevated a presumed fact into an established fact. The presumption is not a presumption of law, but a presumption of fact. It entitles the fact-finding tribunal to infer from basic facts (a ditch dug when land was not in common ownership) a presumed fact (the boundary is on the far side of the ditch from the hedge.) That presumed fact is not an established fact because it is capable of being rebutted.

3) Evidence capable of displacing the presumption is such of the material evidence which is before the fact-finding tribunal. The fact-finding tribunal was the Recorder, not a hypothetical observer judging matters as they stood in 1920 or 1921 or indeed at any time before the 1975 conveyance.

4) The terms and surrounding circumstances of the 1975 conveyance constitute evidence capable of displacing the presumption.

5) The conveyance, like the contract which preceded it, must be objectively construed. Consideration of its “genesis” and of “the aim of the transaction”, to borrow from Prenn -v- Simmonds [1971] 1 W.L.R. 1381, leads inexorably to the conclusion that Mr Beard intended to sell and Mrs Burton intended to buy the whole of the Home Farm land up to the boundary with Saverley Green Farm, wherever that boundary was. It may well be that, being well versed in the rural lore that the ditch belongs to hedge, they might have had a common intention to include the ditch and that it was (per Millett L.J.) “no doubt inadvertently excluded.” There might well have been a case for rectification. But the deed has not been rectified. The parties to the deed are therefore stuck with the objective meaning of the words of the conveyance which must now be taken to have given effect to their intention to convey the whole estate. Imputed to Mr Beard is, therefore, an assertion that the boundary between his farm and his neighbour’s farm was the middle of the hedge. What had only been a presumption that his land included the ditch has been displaced by his tacit admission that his land did not include it. If his land ended in the middle of the hedge, his neighbour’s land began there as well. The 1975 conveyance does not operate to “convey” the ditch to the plaintiff’s predecessor: what it did was clarify where the defendant’s predecessor regarded a hitherto uncertain boundary line to lie.

6) Any other conclusion would produce the absurdity that there was a strip of land the width of the ditch running down the field. It would be landlocked because no rights of way are reserved. Such a omission is a further pointer to the true construction of the deed excluding ownership of the ditch to which, on this hypothesis, the vendor could have no access. Mr Foster valiantly counters this absurdity with what he says is an absurdity inherent in Mr Machin’s submissions for the Plaintiff, namely that if the vendor had sold the top half of the field and conveyed it by deed describing the land by reference to the Ordnance Survey map, but sold the bottom half without such reference, then what everyone would once have thought to have been a straight line would now be a zigzag. That it as may be. But the answer to it is that such on oddity would have been created entirely by sloppy conveyancing where the conveyancers have failed to have regard to the effect of Fisher -v- Winch on the presumption. That, I suspect, is the true source of the difficulty posed by this appeal.

If the proper construction of the 1975 conveyance is that Mr Beard conveyed the whole of his land up to its boundary with the adjoining farm, then “there is no room at all for the operation of the presumption.” It may be another way of saying the same thing, but it seems to me that there is no room for the presumption to apply because the evidence has clearly displaced the inference and rebutted the fact it was seeking to establish.

I am therefore satisfied that the Recorder correctly applied the law to the facts he found and that he came to the correct conclusion. The result does not diminish the usefulness of the presumption and what may be a widely held common perception of its operation in rural communities. I am, however, relieved that the conclusion will have the beneficial result that maps of rural England and Wales will not have to be redrawn to show mile upon mile of ditches owned by some long forgotten vendor whose solicitors chose to convey the land he was selling by reference to the Ordnance Survey map. I am relieved that boundary disputes will not as a result have the added complication of tracing these long lost owners and squabbling about title having been acquired by adverse possession. As I indicated at the beginning of this judgment, boundary disputes are horrid enough as they are.

I would therefore dismiss this appeal.

LORD JUSTICE JUDGE:

The action by the plaintiffs was formulated in trespass. The claim to possession of the disputed land was based not on general evidence of physical control of the land or adverse possession as against the defendant but on proof of ownership or title to it. For this purpose it was not enough for the plaintiffs to demonstrate that contrary to his own assertions the defendant also lacked or was unable to prove title to the same disputed piece of land.

There was no evidence before the Recorder that the disputed land had been in common ownership. He decided that the boundary between the two estates had been marked by a hedge and ditch which were likely to have originated contemporaneously. The ditch was on the plaintiffs’ side of the hedge. Nevertheless he concluded that the plaintiffs’ title included not only the ditch but ran up to the centre of the hedge itself.

The difficulty with this conclusion is that there is nothing in any of the deeds relating to the plaintiffs’ land prior to the May 1984 conveyance which begins to hint at it. The title of the plaintiffs depended on the terms of the May 1984 conveyance from CJ and HB Bedson, the executors of Joseph Bedson deceased, who acquired the land by indenture dated 11th April 1921, by verbal description. No reference to ordnance survey maps or plans was made in any relevant deed relating to this land prior to 14th May 1984, when the conveyance referred to them “for identification purposes only”, and went on to state expressly that the land that passed to the plaintiffs was the land included in the April 1921 indenture. Although the 1984 conveyance referred to the ordnance survey, of itself the ordnance survey does not fix private boundaries. Therefore although the parties to a conveyance may choose deliberately to adopt the ordnance survey to identify the land which is the subject of the conveyance, that in my judgment does not enable a party without title to a given parcel of land to convey it to a purchaser merely by including within the conveyance a reference to the ordnance survey (or any other feature). In summary, and for present purposes ignoring the provisions of the Land Registration Act 1925, he cannot by mere assertion in the conveyance, however phrased, pass a title to land over which he himself has none, a fortiori where the relevant conveyance, as here, merely refers to the ordnance survey for the purposes of identification.

Although not cited in argument I find the corollary of the principle I am endeavouring to express encapsulated in the observations of Mansfield CJ in Taylor v Neeham [1810] 2 Taunt 278 at 282

“..... It would be a very odd in the law of any country, if A could take by any form of conveyance, a greater or better right than he had who conveys it to him; it would be contrary to all principle. But it does not rest merely on the general principle; if you look into all the books upon estoppel, you find it laid down, that parties and privies are not estopped, and he who takes an estate under a deed, is privy in estate, and therefore never can be in a better situation than he from whom he takes it.”

In reality the conclusion that the defendant nevertheless trespassed on the plaintiffs’ land was based on evidence about his own lack of title and argument about the applicability or otherwise of the hedge and ditch presumption in the context of the conveyance to the plaintiffs as well as to him..

The defendant’s title was acquired by conveyance dated 23rd July 1985 from Patricia Burton whose title derived from the conveyance to her from Wilfred Beard dated 5th February 1975. The schedule of the 1975 conveyance described the parcels of land by reference to ordnance survey field numbers and acreages shown on the plan, which was itself a copy of the relevant part of the ordnance survey. She purported to convey the same land to the defendant as Mr Beard had conveyed to her, and for this purpose adopted the same document. The reference to the ordnance survey meant that the boundary of the land conveyed by the respective vendors was based on the centre of the hedge line, and did not expressly include the ditch and half the hedge on the plaintiffs’ side.

Wilfred Beard had acquired his land from Joseph Beard by conveyance dated 25th September 1956 and he in his turn had acquired the land by conveyance dated 13th January 1920. Each of these conveyances depended on verbal description and neither referred to any plan nor the ordnance survey.

From this brief summary it is clear that until 5th February 1975 all the deeds in respect of both parcels of land were silent about the true line of the boundary between them. As the Recorder found, the relevant parcels of land, including the disputed land, were not for any relevant purposes in common ownership. Next, for the reasons given when analysing the plaintiffs’ title, the defendant could not purchase land from Mrs Burton which she herself was not entitled to sell. Finally, in my judgment the application of the hedge and ditch presumption until 4th February 1975 would, in the absence of any other relevant evidence (and there was none) have led to the conclusion that the land owned by Wilfred Beard or his predecessors in title included the area of land now in dispute.

Although a significant part of the argument depended on analysis of the hedge and ditch principles, in my judgment they are uncontroversial, and adequately summarised for present purposes in Emmet on Title, 18th edition, at 17-023

“When two estates are separated by a hedge and a single ditch, the presumption is, in default of evidence, that both ditch and hedge belong to the owner of the land on which the hedge is planted. .... The presumption does not arise if the position of the boundary can be ascertained from the title deeds.”

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. Sir Wilfred Greene MR in Fisher v Winch [1939] 1 KB 666 observed “it is a very convenient rule of common sense which applies in proper cases in regard to agricultural land where there is no boundary otherwise ascertainable.” Goddard LJ, while rejecting the argument that the hedge and ditch method of ascertaining a boundary amounted to a “custom” and underlining that it was merely a presumption, added that it was “very often decisive where there is no evidence at all as to what the boundaries are ......”

In Davey v Harrow Corporation [1958] 1 QB 60 he returned to the same point acknowledging that “the judge was justified, in the absence of the further evidence which was given before us, in applying the presumption that the bank and fence were the property of the landowner on whose side of the fence the ditch was not.”

In Davey the conveyances which formed the plaintiffs’ title were always described by reference to the ordnance survey, and the case involved the rather odd situation that the defendants, having pleaded that the trees with the encroaching roots were on their property, asserted after all, that the land on which the trees grew belonged to the plaintiff or his predecessors in title. In the present case neither title was identified by reference to ordnance survey plans until relatively recently, and certainly not before February 1975. In Fisher the boundary under consideration had been created out of two separate disposals of parcels of land on successive days by the common owner. Although the conveyances were differently worded, examination of the title deeds to both parcels of land demonstrated the line of the boundary. As Beldam LJ commented in Hall v Dorling & Anr , unreported, 26th March 1996 “if the trustees had specifically conveyed land delineated on a plan to the defendant they could not subsequently in law transfer it to the plaintiff”. Therefore the decision in Fisher was hardly surprising. By contrast, in the present case, the deeds did not stem from common ownership of land nor did the conveyances immediately follow one another. Rather two separate titles without an identifiable common source of origin were under consideration.

If when considering the plaintiffs’ claim the Court were limited to consideration of the words of the separate conveyances from which each party received its title, or in other words, in the present case without reference to title (or lack of it) before 14th May 1984 in relation to the parcel of land belonging to the plaintiffs, and in the defendant’s case, without reference to title before 23rd July 1985, or indeed 5th February 1975, then the decision in Fisher would lead to the conclusion that the line of the boundary was the middle of the hedge and that the plaintiffs were entitled to the disputed land. One simply looks at the two plans and by reference to the ordnance survey the relevant boundary lines shown in each coincide.

In my judgment the approach to the problem adopted in Fisher is not justified when the dispute does not arise out of the creation of two parcels of land out of one. In the present case there has in law been no link between the titles to the separate parcels of land owned by the plaintiffs and the defendant. Therefore the two unconnected titles must be analysed. The history cannot be ignored, particularly where as here, the conveyance on which the plaintiffs’ title depends expressly refers to the 1921 conveyance. Despite the reference to the ordnance survey for identification purposes this reference emerged from nowhere without any evidence to suggest that the vendor was entitled to sell the disputed land. Indeed he only purported to sell the land which had been acquired by Joseph Bedson under the April 1921 conveyance. Therefore without repeating the reasons given earlier in this judgment the plaintiffs’ conveyance did not vest ownership in him. Equally, the defendant’s claim to the disputed land depended on the hedge and ditch presumption of law but was contradicted by the conveyance to him. Whatever the position may have been in February 1975, the conveyance to the defendant did not grant him title to the disputed land. However in my judgment the deficiencies in his title do not result in the acquisition of the land by the plaintiffs.

This conclusion leaves a strip of apparently valueless land between the two properties which belong to neither the plaintiffs nor the defendant. This is unlikely to have been the intention of the parties who owned the disputed land, Mrs Burton, or more particularly Mr Beard. Treating them for present purposes only as one, so as to avoid unnecessary repetition, as they did not deliberately reserve this small piece of land, for example, to allow for subsequent building development on it, it presumably all came about by oversight or accident. That would not justify the Court interfering with rights to land which were not disposed of expressly, or in effect decide that they forfeited their title to land to someone to whom they had not sold it. Neither Mr Beard nor Mrs Burton intended that the hedge and ditch which belonged to them should become the property of the plaintiffs. Their deeds did not say so. They should not be deemed to have surrendered the disputed land to the plaintiffs or any successors in title.

The solution reached in this case is that there has been a Deed of Confirmation purporting to put right the accidental omission from the 1975 and 1985 conveyances to the defendant. It has no bearing on the outcome of this case because it was not at any stage before the Recorder, nor indeed before this Court. I have therefore wholly ignored it in reaching my conclusion, but pause to observe, first, that it if had been before the Recorder it might have assisted in the resolution of the problems, but this being a boundary dispute, it is impossible to conclude that it would have brought this expensive litigation to an end, and second, that where similar problems arise, it would be sensible for the predecessors in title to be contacted at a very early stage in the proceedings and an appropriate deed or declaration obtained from them. It is unlikely that the owner of a valueless piece of land, which he though he had disposed of, for which he believed he had ceased to have any responsibility, would become unreasonably demanding. Finally, in view of the conclusion reached by Ward and Simon Brown LJJs, whose judgments I have read in draft, both vendors and purchasers of land should be alerted to the problems of using the ordnance survey for the purpose of identifying the land which they respectively wish to sell and buy. The ordnance survey highlights the hedge and ignores the ditch. The inconvenience of buying and thereafter maintaining (whether by laying, or otherwise) half the width of a hedge, without any entitlement to use the adjacent ditch, as well as the scope for dispute with the owner of the other half of the hedge, require that the most careful consideration should be applied to the problem of using the ordnance survey as providing the boundary between the two parcels of land.

For the reasons given earlier in this judgment I would allow this appeal.

LORD JUSTICE SIMON BROWN:

Where two estates are separated by a hedge and a ditch, both are presumed to belong to whoever owns the land on the hedge-side of the ditch. This is known as the hedge and ditch presumption. But it is only a presumption and it is rebuttable whenever other evidence points to a different boundary.

The novel question raised by this appeal is whether the presumption is rebutted merely by a conveyance of the hedge-side land which, by direct reference to an ordinance survey map, conveys only the land up to the centre point of the hedge.

Mr Foster, on behalf of the appellant (the hedge-side owner) submits not. He acknowledges that as a result of the two successive conveyances of the hedge-side land, respectively in 1975 from Wilfred Beard to Patricia Burton and in 1985 from Patricia Burton to the appellant, both Mrs Burton and in turn the appellant himself acquired land only to the centre of the hedge. He relies, however, on the judge's finding of fact that prior to 1975 the hedge and ditch presumption would have arisen in Wilfred Beard's favour to argue that the subsequent conveyances of the hedge-side land, whilst admittedly failing to convey the further half of the hedge and the ditch to the appellant, can on no view have operated to transfer this strip of land to the ditch-side owner, the respondent. Rather, he submits, ownership of this strip remains in Wilfred Beard's estate. As for the 1984 conveyance of the ditch-side land to the respondent, that, Mr Foster submits, was of entirely neutral effect. It purported to convey only the land which the vendor's predecessor in title had himself acquired under the 1921 conveyance and its reference to the OS map was for identification purposes only.

For my part, I accept that the 1984 conveyance of the respondent's land was of neutral effect. It was consistent equally with the disputed strip being included in or excluded from the land being transferred. Even, indeed, had the 1984 conveyance purported to convey this strip by defining the land (as the 1975 and 1985 conveyances did) directly by reference to the OS plan, that too, I am prepared to accept, would not have been sufficient to displace the presumption: the appellant as hedge-side owner could still have contended that the respondent's predecessors in title had purported to convey to him more than they owned and that the boundary remained where the presumption placed it.

Therefore, as I repeat, the case turns on the effect of the 1975 and 1985 conveyances. Do these operate to rebut the presumption?

Ward LJ has already considered the main authorities and in particular has set out the relevant parts of the judgments of the Court of Appeal in Fisher v Winch [1939] 1KB 666. I acknowledge, of course, that in that case the earliest conveyances before the court, the conveyances which had transferred the respective estates out of common ownership, had conveyed the properties by reference to OS plans, and that in the case of the defendant hedge-side owner that had been, as here, by direct reference to the plan. Necessarily, therefore, the court was bound to conclude that the plan and not the presumption was decisive of the position of the boundary: if the ditch had been dug before the conveyances (i.e. whilst the estates were still in common ownership), then by definition it could have raised no presumption at all; if, however, it were dug after the conveyances, it could not enlarge the hedge-side owner's estate which was already by then established by the terms of the conveyance itself.

The present case, I accept, is by no means as simple as that. But to my mind the plain fact that the 1975 conveyance (and in turn the 1985 conveyance) transferred land only to the centre of the hedge (a fact which Mr Foster now acknowledges although apparently it was contested below, certainly on the pleadings) should be regarded, in the absence of any evidence to the contrary, as decisive of the true boundary of the estate which Mr Beard owned and was presumably intent on conveying. Given, indeed, the presumption as to the true boundary arising from the OS plan and, as I see it, the natural presumption, in the absence of any evidence to the contrary, that Mr Beard was intent on conveying his whole estate - rather than on leaving in limbo down the years a strip of land in the middle of nowhere whose ownership it might become ever more difficult to establish - I see no room for the operation of the hedge and ditch presumption at all. Indeed I go further. I question whether in a case like the present it was appropriate to investigate whether, prior to 1975, the facts would have been such as to found a claim based on the presumption. Here, it will be noted, there was a factual dispute below as to whether there ever had been a ditch running alongside the hedge at the relevant part of the boundary. True, that dispute was resolved in the defendant's favour. But why, I ask rhetorically, did the judge ever need to address it? He will have decided this factual issue on the balance of probabilities, perhaps by the narrowest margin. Yet the likelihood that Mr Beard thought that his boundary ended at the hedge by reference to which he conveyed his estate seems to me altogether clearer.

I conclude that once, as here, the hedge-side owner's land appears to be defined by an OS related conveyance to end at the line of a hedge, that (provided only that the conveyance of the adjacent estate is consistent) is that, and it becomes unnecessary to explore whether or not, at some earlier date, the facts might have supported a claim to additional land based on the hedge and ditch presumption. It is only when a boundary dispute crystallises that one needs to consider the position. If, as here, the hedge-side owner's land has by then been defined by a conveyance, that is decisive. Only if the conveyance leaves his boundary unclear does it become necessary to research, perhaps into the distant past, to see whether the dispute can instead be resolved by that touchstone of last resort, the hedge and ditch presumption.

The short answer to the appellant's question: how could the 1985 conveyance transfer to the respondent more land than, given the hedge and ditch presumption, was his vendor's to sell, is that it did not: the question wrongly predicates that the presumption had operated to define the boundary before the 1975 conveyance. It had not. There had not by then been any boundary dispute and thus no occasion to decide one way or the other whether the presumption arose. By the time the dispute arose, the boundary was well able to be determined in the manner I have indicated, i.e. by the conveyances, in particular the 1975 and 1985 conveyances of the appellant's land. There was accordingly no good reason to assume that the respondent's land prior to 1975 extended only to his edge of the ditch and to my mind the judge's needless findings of fact on the point are no sufficient basis for according the presumption a role in resolving this dispute that it should never have had.

If it be suggested that the approach I advocate depreciates the value of the hedge and ditch presumption, a presumption widely recognised and relied upon up and down the country, I reply not so. The presumption remains as valuable as ever it was. Those whom it favours, however, must recognise that it will be lost by conveyances of their land which clearly appear to deny its effect. If, as vendors, they wish to transfer the ditch and not just half the hedge, their conveyance should not define the land, as here, by direct reference to an OS plan which puts the boundary along the hedge. If, for whatever unlikely reason, they wish to retain the ditch, their conveyance should make this plain. If, as purchasers, they are intent upon acquiring the ditch, they should ensure that the conveyance to them is apt for the purpose. If in all this they fail, the presumption will not thereafter avail them.

I too would dismiss this appeal.

Order: Appeal dismissed with costs re Section 18 Legal Aid Act