Parmar v Upton


Reference:
[2015] EWCA Civ 795 [2015] 2 P. & C.R 18

Date:
30th July 2015

Court:
Court of Appeal

Comment:

Facts

The Claimant and Defendant were neighbours. The Claimant, Upton, acquired his property in 1997. It comprised a house and agricultural land and was immediately adjacent to land owned by the Defendant, Parmar. The common boundary extended to some 200 metres.  In 2008 Mr Parmar carried out residential development on part of his land, constructing 4 substantial properties. Two were sold to the second to fifth defendants. Mr Upton claimed that during the course of the development Mr Parmar trespassed on his boundary by filling in and diverting part of the ditch that ran along the boundary.

 

A 1925 conveyance of Mr Parmar’s land showed a ditch running the length of the disputed boundary. The trial judge acknowledged that the 1925 conveyance was helpful in determining the boundary but not determinative. The judge also found that there used to be a hedge along the boundary immediately to the north west of the ditch. The judge applied the hedge and ditch presumption - i.e. that where a hedge and ditch existed along a boundary it was presumed that the boundary lay along the edge of the ditch on the far side of the hedge – and so found for the Claimant.

That rule involved two successive presumptions:

  • that the ditch was dug after the boundary was drawn; and
  • that the ditch was dug without cutting into the neighbour’s soil but cutting to the extremity of the digger’s own land and the soil thrown back onto his own land, often with a hedge planted on top of it.

On appeal to the Court of Appeal, Mr Parmar was given permission to adduce fresh evidence that the ditch immediately to the north of the disputed area had crossed other land which, until 1920, had been in common ownership.

His case was that:

  • the presumption was rebutted; and
  • Mr Upton’s title to sue in trespass derived from the 1997 conveyance which conveyed the land up the line of the hedge but no further.

Dismissing the appeal, the Court of Appeal held that dismissing the appeal, that:

  • The topography along the disputed boundary allowed the hedge and ditch rule to apply. The first presumption that the digging of the ditch came after the boundary had come into existence could not be rebutted except in relation to that part of the boundary not in dispute. The second presumption - namely, that the ditch along the disputed part of the boundary had been dug at the extremity of the Claimant’s land, with the soil thrown back and a hedge planted on top - was also not rebutted. Mr Parmar’s argument that the ditch as a whole had been dug for drainage rather than as a boundary took matters no further. Farmers generally dug and maintained ditches for the economic purpose of draining farmland to improve its yield rather than to define boundaries and the authorities regarding the hedge and ditch rule did not make it a necessary part of the underlying presumptions that the ditch had been dug as a boundary ditch rather than for drainage. Vowles v Miller (1810) 3 Taunt. 137 did not suggest otherwise;

  • There was real force in Mr Parmar’s argument that the ditch could not be regarded as having been dug solely by Mr Upton’s predecessors. However, the Court of Appeal held that the digging of the ditch was likely a cooperative enterprise between the farmers, each contributing to the joint product by work at the edge of their respective fields. Therefore , whilst the new evidence about the common ownership of the land to the north was undoubtedly relevant evidence it did not support departing from the judge’s conclusion that there was nothing to rebut the hedge and ditch presumptions.

  • The 1997 plan and conveyance was for identification purposes only and, as such, could not be relied upon as delineating the precise boundaries. It did no more than indicate the general boundaries and, in those circumstances, recourse must be had to the drawing of inferences from existing topographical features, or other evidence, including inferences to be derived from the hedge and ditch rule. The intelligent observer taking the 1997 plan would think that the vendors were selling all they had, rather than purporting to retain a useless strip isolated from any land in their continuing ownership. They would not be dissuaded from that assumption by the terms of the 1997 conveyance and plan, precisely because of the repeated warnings that the plan was for identification purposes only.

Comment

The hedge and ditch presumption lives on and, it seems, will only be rebutted by the most cogent of evidence. In Parmar v Upton clear evidence that the same ditch extended immediately north of the disputed area into land that at all relevant times had been in common ownership was not enough to rebut the presumption. Equally, the hedge and ditch rule will continue to have effect to override conveyance plans where these show the land conveyed as delimited by the ordnance survey boundaries. If such a plan is for identification only and the strict interpretation of the plan would be to leave an isolated strip of land along the boundary, the hedge and ditch rule will operate to treat the land conveyed as extending to the far lip of the ditch.  

 

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