Alan Wibberley Building Ltd v Insley

The hedge-and-ditch presumption is a rebuttable presumption of fact. It applies only where the boundary cannot otherwise be ascertained from the conveyances and other admissible evidence. A conveyance identifying land by reference to an Ordnance Survey plan may fix the boundary at the centre of the hedge and displace the presumption. This approach applies even where the adjoining titles were not created from a common ownership. The conveyance must be construed objectively, having regard to its wording and surrounding circumstances.

This was an appeal from an order of Mr Recorder Pardoe in a boundary dispute between adjoining rural properties. The properties were separated by a hedge and ditch, with the ditch on the respondent’s side of the hedge. The appellant removed the hedge and erected a fence along the disputed line.

The appellant’s title derived from a 1975 conveyance which described the land by Ordnance Survey field numbers and plan. The respondent’s 1984 conveyance referred to the Ordnance Survey plan for identification only and traced title to an earlier verbal description. The Recorder held that the boundary was the centre of the hedge, awarded damages and granted consequential relief. The appeal concerned whether the hedge-and-ditch presumption had fixed the boundary before the 1975 conveyance and left the ditch with an earlier owner.

Majority allowing the appeal to be dismissed. Ward LJ and Simon Brown LJ dismissed the appeal. Judge LJ dissented.

1. The hedge-and-ditch rule is a rebuttable presumption of fact, not a custom or conclusive presumption of law. It operates only where the boundary is not otherwise ascertainable. It may be displaced by title deeds and other material evidence available to the fact-finding tribunal.
2. The initial question is the true construction of the relevant conveyances. A conveyance which identifies parcels by reference to Ordnance Survey field numbers and a copied Ordnance Survey plan ordinarily fixes the boundary at the centre line of the hedge. In such a case there is no room for the hedge-and-ditch presumption. The approach in Fisher v Winch [1939] 1 K.B. 666 and the Ordnance Survey evidence recognised in Davey v Harrow Corporation [1958] 1 Q.B. 60 applied.
3. Ward LJ held that the terms and surrounding circumstances of the 1975 conveyance, objectively construed, displaced any earlier inference that the vendor’s land included the ditch. The conveyance was intended to cover the whole estate up to the boundary with the adjoining farm. Simon Brown LJ regarded the 1975 and 1985 conveyances as decisive and said that it was unnecessary to investigate whether the presumption had operated at an earlier date. The absence of common ownership did not make the relevant principles inapplicable.
4. Judge LJ considered that the respondent had not proved title to the disputed strip. In his view, the separate title histories had to be analysed independently, a vendor could not convey land which it did not own, and the deficiencies in the appellant’s title could not vest the land in the respondent. He would have allowed the appeal.

The appeal was dismissed with costs under section 18 of the Legal Aid Act.

• Court of Appeal (Civil Division) — On appeal from the order of Mr Recorder Pardoe, the court dismissed the appeal by a majority, with costs under section 18 of the Legal Aid Act: [1997] EWCA Civ 2698.
• Mr Recorder Pardoe — On 30 November 1995, declared the boundary to be the centre line of the hedge, ordered fencing and restraint of entry, and awarded the respondent £900 damages.