Alan Wibberley Building Ltd v. Insley

The House of Lords allowed the appeal and declared that the boundary between the farms ran along the Saverley Green Farm edge of the ditch. The court reaffirmed the traditional "hedge and ditch" presumption (derived from Vowles v. Miller) that, where a hedge and ditch exist, the boundary is presumed to be on the far side of the ditch from the hedge, unless there is evidence displacing that presumption. It held that references to Ordnance Survey plans described in conveyances as "for the purposes of identification only" do not, without more, displace the presumption or effect a precise boundary contrary to the true title shown by earlier deeds. The defendant in possession therefore prevailed because the claimant (Wibberley) failed to establish a better title to the strip from its deeds.

This is an appeal concerning a small strip of garden land between Saverley Cottage (the occupier Mr Insley) and Home Farm (later owned by the respondent company Wibberley). Wibberley sought recovery of a strip enclosed by Mr Insley after he removed a hedge and erected a fence. The dispute required construing historical unregistered conveyances and deciding whether a long-standing hedge-and-ditch feature or later conveyancing references to Ordnance Survey field lines determined the precise boundary.

Background and procedural history:

• Mr Insley bought garden land in 1985 and, relying on the hedge-and-ditch presumption, grubbed up the hedge and fenced along the far side of the ditch.
• Wibberley, claiming title to the strip, sued in the County Court (Recorder Alan Pardoe Q.C.) and succeeded. The Court of Appeal by majority (Simon Brown and Ward L.JJ., Judge L.J. dissenting) affirmed; Judge L.J. would have applied the presumption. The Court of Appeal report appears at [1998] 1 W.L.R. 881.
• The House of Lords granted leave and heard the appeal.

Nature of the claim: Wibberley sought possession and declaration of title to the disputed strip.

Issues framed:

1. whether Wibberley had established title to the strip by reference to its deeds; and
2. whether references in later conveyances to Ordnance Survey plans (and the drafting of parcels) displaced the hedge-and-ditch presumption and therefore altered the true boundary.

Reasoning and findings:

• The court analysed the chain of conveyances, emphasising the rules governing unregistered conveyancing and the need to supplement parcel descriptions by topographical inferences when plans are "for identification only".
• The hedge-and-ditch presumption (explained from Vowles v. Miller) was applicable because there was no evidence the ditch predated the drawing of the boundary; accordingly the boundary was presumed on the far side of the ditch.
• The House of Lords rejected the approach that later conveyances which referenced Ordnance Survey field lines (and which described plans as for identification only) could retrospectively displace the presumption as to the title of a third party whose title derived from an earlier conveyance. The court distinguished Fisher v. Winch on its facts (where the common owner conveyed adjacent parcels and the ditch predated the boundary situation) and found Fisher inapplicable here.
• Because Wibberley had not made out a better title to the strip on the basis of its deeds, and Insley was in possession, the appeal was allowed and a declaration made that the boundary ran along the Saverley Green Farm edge of the ditch.

The decision emphasises the caution required in construing parcel descriptions and the continued role of longstanding topographical presumptions in determining farm boundaries.

Appeal allowed. The House of Lords held that the hedge-and-ditch presumption was not displaced by later conveyancing references to Ordnance Survey mapping described as "for the purposes of identification only"; Wibberley had not established a better title to the disputed strip and therefore the boundary ran along the Saverley Green Farm edge of the ditch.

County Court (Recorder Alan Pardoe Q.C.) judgment for the claimant Wibberley; Court of Appeal affirmed by majority (Simon Brown and Ward L.JJ., Judge L.J. dissenting), reported at [1998] 1 W.L.R. 881; appeal allowed by the House of Lords [1999] UKHL 15.