Steward v Gallop & Anor

In a disputed boundary case, a conveyance or partition deed which did not itself create the boundary may nevertheless form part of the relevant conveyancing history and must be considered with other historical and topographical evidence. The general boundaries rule does not make such material irrelevant.

The hedge-and-ditch presumption cannot be applied merely because an alternative account of the ditch’s origin is rejected. The court must assess when and why the ditch was created, including the fact that it may extend along only part of the boundary. A court determining the paper boundary must also decide any adverse-possession defence which could extinguish or limit the claimant’s title. Failure to address those issues required a retrial.

The claimant brought a trespass and boundary claim concerning adjoining rural properties. He sought a declaration of the boundary, damages and an injunction after the defendants removed part of a hedge, erected fencing and placed structures near the disputed line.

After a seven-day trial, the recorder in the Newport (Isle of Wight) County Court accepted the claimant’s case, applied the hedge-and-ditch presumption, granted declaratory and injunctive relief, awarded damages, and ordered costs. The defendants appealed with permission.

The Court of Appeal considered the significance of an earlier deed of partition and its plan, the effect of registration of one title, the hedge-and-ditch presumption, the parties’ evidence concerning a drainage ditch and an old fence, the defendants’ limitation defence, and alleged apparent bias.

1. Appeal allowed. The recorder’s order was set aside and the case was remitted to the county court for a new trial.
2. The first registration of Thornbury did not determine the exact boundary. Under the general boundaries rule in rule 278 of the Land Registration Rules 1925, the filed plan left that line undetermined. The issue therefore had to be resolved by the relevant conveyancing history, historical topographical features, and evidence of use. The statutory effect of registration did not give special significance to physical features existing at the date of first registration: paras [87]–[93].
3. The 1915 deed of partition was not binding on the claimant, but it was part of the title history and could not be disregarded because it did not create the boundary or might be self-serving. Its plan and dimensions required evaluation alongside other old plans and evidence. The recorder’s reliance on the general boundaries rule as a reason to discount it was a misdirection: paras [94]–[104], [126]–[127], [134].
4. The hedge-and-ditch presumption required more than rejection of the defendants’ evidence that the ditch had been dug for drainage. The court had to assess when and by whom the ditch was created, why it extended along only part of the boundary, and whether the historical plans showed that the hedge pre-dated it. The recorder’s reasoning did not undertake that analysis: paras [112]–[118], [128]–[129], [135].
5. The recorder also failed to determine the defendants’ adverse-possession defence. A finding as to the true boundary did not remove the need to decide whether the defendants or their predecessors had acquired title to the disputed area by possession, particularly in light of the evidence concerning the old fence: paras [119]–[122], [137].
6. The court did not decide the appeal on apparent bias, although comments contrasting country people with others were described as gratuitous and unfortunate in context. The parties were directed to reformulate their pleadings if a retrial was required, and the retrial should be before a circuit judge with a pre-trial review if possible: paras [123]–[138].

• Court of Appeal (Civil Division) — [2010] EWCA Civ 823: appeal allowed; the recorder’s order was set aside and the boundary dispute was remitted to the county court for a new trial.
• Newport (Isle of Wight) County Court — following a judgment after a seven-day trial and an order dated 11 August 2009, the recorder found for the claimant, granted a declaration and injunction, awarded £300 damages and ordered costs.