Alan Wibberley Building Ltd v Insley: HL 24 Mar 1999

The parties disputed ownership of a strip of land between a garden and a farm. The land was registered. There was a hedge and a ditch along the disputed boundary, it had been conceded in the Court of Appeal that a conveyance of land on the hedge side of the ditch transferred land only up to the middle of the hedge, whereas the application of the hedge and ditch rule suggested that the seller owned the strip between the hedge and the other side of the ditch.
Held: The reference to boundaries on an Ordnance Survey plan in a conveyance showing the boundary along the hedge did not displace the assumption that the hedge and ditch were formed within the boundaries of the property. There had been no previous common ownership. The rule in Vowles assumes the boundary exists first, and then the ditch is dug. If either is untrue the rule is displaced. The hedge and ditch presumption, far from being a touchstone of last resort is the best guide to the line of the boundary. Having referred to Land Registry maps based upon the Ordnance Survey, the House added that ‘the precise boundary must, if the question arises, be established by topographical and other evidence’.
‘Boundary disputes are a particularly painful form of litigation. Feelings run high and disproportionate amounts of money are spent. Claims to small and valueless pieces of land are pressed with the zeal of Fortinbras’s army.’ Appeal allowed.
Lord Hoffmann explained the hedge and ditch rule as follows: ‘There are certain presumptions which assist the inferences which may be drawn from the topographical features. Perhaps the best known is the one which is drawn from the existence along the boundary of a hedge and a ditch. In such a case, it is presumed that the boundary likes along the edge of the ditch on the far side from the hedge. The basis of this presumption was explained by Laurence J. in Vowles v. Miller (1810) 3 Taunt. 137 . . It should be noticed that this rule involves two successive presumptions. First, it is presumed that the ditch was dug after the boundary was drawn. Secondly, it is the presumed that the ditch was dug and the hedge grown in the manner described by Laurence J. If the first presumption is displaced by evidence which shows that the ditch was in existence before the boundary was drawn, for example, as an internal drainage ditch which was later used as a boundary when part of the land was sold, then there is obviously no room for the reasoning of Laurence J. to operate.’
He doubted the correctness of the concession made.

Lord Browne-Wilkinson, Lord Lloyd of Berwick, Lord Hoffmann, Lord Hope of Craighead, Lord Clyde
Times 30-Apr-1999, Gazette 26-May-1999, [1999] UKHL 15, [1999] 1 WLR 894, [1999] 24 EG 160, [1999] NPC 54, (1999) 78 P and CR D19, (1999) 78 P and CR 327, [1999] EG 66, [1999] 2 EGLR 89, [1999] 2 All ER 897
House of Lords, Bailii
Land Registration Rules 1925 278
England and Wales
CitedVowles v Miller 9-Jul-1810
Lawrence J said: ‘The rule about ditching is this. No man, making a ditch, can cut into his neighbour’s soil, but usually he cuts it to the very extremity of his own land: he is of course bound to throw the soil which he digs out, upon his own land; . .
CitedAsher v Whitlock CEC 3-Nov-1865
Possession of land is in itself a good title against anyone who cannot show a prior and therefore better right to possession. A possession which is wrongful against the true owner can found an action for trespass or nuisance against someone else. A . .
DisappliedFisher v Winch CA 1939
The land of both parties had been in common ownership. The first plot to be conveyed was sold by a conveyance which set out by reference to the numbers on an Ordnance map the different parcels with their description and acreage. The second . .
Appeal fromAlan Wibberley Building Ltd v Insley CA 12-Nov-1997
Where adjoining fields are separated by a hedge and a ditch, who owns the ditch?
Held: The old presumption as to the location of a boundary based on the layout of hedges and ditches is irrelevant where the conveyance was by reference to an OS . .

Cited by:
CitedKupfer Kupfer v Dunne CA 7-Nov-2003
Neighbours disputed the exact boundary between their houses. An extension and fence had been built. The judge had declared the boundary, and ordered the removal of fence posts.
Held: Such a dispute should be resolved by reference to . .
CitedGeoffrey Allan Chadwick, Sylvia Joyce Chadwick, Edward James Chadwick v Abbotswood Properties Ltd, Gordon Leonard Hauser, Pamela Ann Hauser, Rectory Pump Ltd ChD 18-May-2004
Between to new houses was a steep bank. Who owned it? Before the transfer there had been different plans and much correspondence.
Held: Where there was doubt as to the extent of land transferred, the court could look to the physical boundaries . .
Leading AuthorityPennock and Another v Hodgson CA 27-Jul-2010
In a boundary dispute, the judge had found a boundary, locating it by reference to physical features not mentioned in the unambigous conveyance.
Held: The judge had reiterated but not relied upon the statement as to the subjective views of the . .
CitedTaylor v Lambert and Another CA 18-Jan-2012
The court heard an appeal against a judgment in a boundary dispute, the losing party having latterly dicovered aerial photopgraphs. There appeared to be a difference between the total area as specified in a 1974 conveyance off of part and the area . .
CitedParmar and Others v Upton CA 22-Jul-2015
The parties disputed the application of the hedge and ditch rule in settling their boundary. The appellant wished to have reliance placed upon evidence only discovered after trial.
Held: The appeal failed. The Judge was, notwithstanding the . .

Lists of cited by and citing cases may be incomplete.

Land, Registered Land

Leading Case

Updated: 01 November 2021; Ref: scu.77706