On the line
The farmer’s ‘hedge and ditch’ rule is still used to determine the line of a boundary.
There is an old rule, or presumption, dating from the early 1800s, about where the boundary of agricultural land lies. Called the ‘hedge and ditch’ rule, it states that where two properties are divided by a hedge and a ditch, the boundary between them is presumed to be on the opposite edge of the ditch from the hedge.
The idea is that when marking out the boundary to their land, the original owners would have stood on the boundary facing the land and dug a ditch, possibly to drain the land. The spoil would have been piled on the ‘home’ side, to form a bank on which the owners would plant a hedge. The far edge of the ditch therefore forms the boundary. (This assumes that there is no other evidence to the contrary.)
The hedge and ditch rule is used by many farmers and landowners as the basis for their boundaries.
There was a useful reminder that the courts still give credence to this rule in the case of Parmar v Upton (2015) EWCA Civ 795. Mr Upton and Mr Parmar owned neighbouring plots of land. Mr Parmar filled in a ditch and developed it by building houses on it. Mr Upton claimed that he had owned the ditch and that Mr Parmar was therefore trespassing on his land.
Mr Upton issued court proceedings, which eventually came before the Court of Appeal. Mr Parmar had two main arguments. First, he pointed to a plan attached to the conveyance by which Mr Upton had bought his land. The court rejected this, because the conveyance itself said that the plan was to be used for identification purposes only.
Second, Mr Parmar argued that the ditch had been used for drainage purposes, and so could not be a boundary. The court rejected that argument too. It said that most ditches are dug for drainage.
The court said it was not persuaded to depart from the hedge and ditch rule, even though the hedge in this case had been removed. It found for Mr Upton.
The case highlights the need for farmers and landowners to take care when carrying out works on or near their boundary. The bottom of a ditch or the line of a hedge may not form the boundary. Problems can be caused when a landowner mistakenly believe that it does and ‘pipes the ditch’ or removes a hedge to replaces it with a fence.Michael Feakes