A “quaint chancery conceit”, in the form of the “hedge and ditch rule, continues to serve a valuable purpose

One of the best-known rules, often used to help establish the line of a boundary, is the “hedge and ditch” rule. It is based on the rebuttable resumption that, if a person wishes to create a ditch and plant a hedge on his boundary, he will dig the ditch on his side of the boundary and throw the soil back onto his own land, creating a bank on which to plant the hedge. Therefore, the boundary will run along the line of the ditch that lies furthest from the hedge. The question that the Court of Appeal had to answer in Parmar v Upton [2015] EWCA Civ 795; [2015] PLSCS 231 was whether the trial judge had been right to use the hedge and ditch rule to help pinpoint a boundary. The court decided that he had and, in so doing, provided some useful guidelines on the use of the rule. Lord Justice Briggs reminded the parties that, where a conveyance or transfer uses a plan “for identification only”, the plan cannot be relied on as delineating the precise boundaries of the land conveyed or transferred. Therefore, in the event of a dispute about the position of a boundary, the court may need to draw inferences from existing topographical features and other evidence, including the hedge and ditch rule. The rule applies only if the ditch was dug after the boundary line was drawn. If there is evidence to show that the ditch existed before the boundary was drawn, the rule will not apply because, where land is in common ownership, landowners can dig and plant wherever they like. In such cases, the position of the boundary will be governed by the terms of the conveyance or transfer of the part sold. The properties in question had been in different ownerships for many years, if not centuries, and there had plainly once been both a ditch and an adjacent hedge, even though the hedge had largely disappeared. The presumptions that underpin the hedge and ditch rule must be rebutted by evidence that demonstrates at least a probability that the events inherent in the presumption did not occur. There was insufficient evidence to demonstrate this here. Lord Justice Briggs went on to explain that, where it is clear that the relevant ownership boundary was created prior to the earliest surviving conveyance, so that the documents that survive deal merely with the land on one or the other side of that boundary, the conveyancing history is unlikely to be decisive. There are two reasons for this. First, if the conveyance of land on one side purports to convey land beyond the pre-existing boundary, then to that extent it signifies nothing. The seller cannot convey land that he does not own. Conversely, if the conveyance appears to stop short of the pre-existing boundary, one must ask whether the parties really intended the seller to retain an apparently useless strip along the edge of the land being transferred. One of the plans to which the court was referred was attached to a 1997 conveyance. It appeared to reserve a narrow strip along the boundary. However, the plan was expressed to be for identification only and there was nothing to suggest that the buyer had obtained anything less than all the land in the seller’s ownership, which included both the hedge and the ditch due to the application of the “hedge and ditch” rule.   Allyson Colby is a property law consultant