Alan Wibberley Building Ltd v Insley

Possession of land is a sufficient title against anyone unable to establish a prior and better right to possession. Where a hedge and ditch mark an established boundary, the boundary is presumed to lie along the edge of the ditch furthest from the hedge. That presumption depends on the ditch having been dug after the boundary was created.

An Ordnance Survey plan used only for identification ordinarily indicates general boundaries rather than their precise legal position. Exact boundaries may therefore require examination of the deeds, their context and contemporary topographical features. A later conveyance cannot retrospectively enlarge a neighbour’s earlier title, and a grantor cannot convey land which the grantor does not own.

Alan Wibberley Building Ltd v Insley concerned ownership of a narrow strip beside a hedge and ditch separating two farms which had been in separate ownership for centuries. The respondent company claimed possession of the strip. Mr Insley, who occupied it, relied on the hedge and ditch presumption.

The County Court recorder found for the company. The Court of Appeal affirmed that decision by a majority, Simon Brown and Ward L.JJ. forming the majority and Judge L.J. dissenting: [1998] 1 WLR 881. The majority considered that a 1975 conveyance referring to an Ordnance Survey plan displaced the presumption and cast retrospective light on the earlier titles.

The central questions were whether the company had proved a better title than the person in possession, whether the hedge and ditch presumption determined the ancient boundary, and whether the later plan-based conveyance could alter that conclusion.

1. Appeal allowed unanimously. Lord Hoffmann delivered the leading speech. Lord Browne-Wilkinson, Lord Lloyd of Berwick, Lord Hope of Craighead and Lord Clyde agreed with his reasons. The House declared that the boundary ran along the Saverley Green Farm edge of the ditch.

2. Per Lord Hoffmann, Mr Insley was in possession and did not have to prove his own documentary title. Under Asher v Whitlock (1865) L.R. 1 Q.B. 1, possession is a good title against anyone unable to establish a prior and better right. The burden therefore rested on the company to prove that its deeds included the disputed strip.

3. Per Lord Hoffmann, the hedge and ditch rule described in Vowles v Miller (1810) 3 Taunt. 137 contains two successive presumptions. The ditch is first presumed to have been dug after the boundary was fixed. It is then presumed that the owner dug at the extremity of the owner’s land and placed the soil, and often the hedge, on that owner’s side. There was no evidence that the ditch pre-dated the ancient boundary, so the deeds and topographical evidence indicated that the company’s predecessor acquired land only to the near edge of the ditch.

4. Per Lord Hoffmann, the 1975 conveyance probably used the Ordnance Survey plan merely to identify the property and did not displace the hedge and ditch presumption. Even on the artificial assumption, arising from a concession below, that the conveyance stopped at the hedge’s centre, it could not retrospectively affect the title conveyed to the company’s predecessor in 1921. The company consequently failed to establish title to the strip.

5. Per Lord Hoffmann, Fisher v Winch [1939] 1 K.B. 666 was distinguishable. There the boundary was created when land formerly in common ownership was divided, so the ditch necessarily existed before the new boundary and the hedge and ditch reasoning could not operate. The relevant conveyance also used an Ordnance Survey plan without limiting it to identification. Here the farms had long been separately owned and the plans were introduced only much later.

6. Lord Hope agreed and added that Ordnance Survey maps are topographical rather than determinative of private legal boundaries. The map depicted the hedge but omitted the ditch. He emphasised that a party cannot convey land to which that party has no title and that the hedge and ditch presumption was the best guide in the circumstances.

1. House of Lords: Allowed Mr Insley’s appeal unanimously and declared that the boundary ran along the Saverley Green Farm edge of the ditch.
2. Court of Appeal: By a majority, Simon Brown and Ward L.JJ., affirmed the recorder’s decision; Judge L.J. dissented: [1998] 1 WLR 881.
3. County Court: Mr Recorder Alan Pardoe Q.C. upheld the company’s claim to recover possession of the disputed strip.