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the Property Law website
Maintained by Gary Webber, barrister
Presumptions
This page is concerned with the hedge to ditch presumption and the hedge to hedge
presumption.
Hedge and ditch presumption
Introduction
The presumption is contained in this classic statement:
"The rule about ditching is this. No man, making a ditch, can cut into his
neighbours 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; and
often, if he likes it, he plants a hedge on top of it .. (Vowles v Miller (1810)).
As has been stated more recently:
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 then presumed that the ditch was dug and the hedge grown in the manner
described. If there is evidence to contradict either element the presumption
does not operate. (Alan Wibberley Building Ltd v Insley [1999] 2 All ER 897, HL).
When and how did the ditch come into existence?
Steward v Gallop
[2010] EWCA Civ 823
Summary
The judge at first instance had misapplied the hedge and ditch presumption in a
boundary dispute by failing to determine when and how the ditch had come into
existence, and whether it had been created before or after the hedge.
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More detail
The recorder failed properly to apply the presumption. Lloyd LJ at paras 113 and 114:
"The recorder stated, correctly, that the presumption involves two distinct
propositions. The first is that the ditch was dug after the boundary came into
existence. Since it seems that the boundary has existed for over 150 years, and
possibly for ever, this can be taken as read in the present case. The other is that
the owner on one side created the ditch on his own boundary, but within his own
land, and threw the soil back onto his own land, thereby creating a bank on which
the hedge was later grown. The presumption was considered recently in Alan
Wibberley Building Ltd v Insley which I have mentioned above. In that case, as in
all other relevant cases of which I am aware, but unlike the present case, the ditch
ran along the whole length of the boundary in dispute. In that case, like the
present, there was no indication that the two parcels of land on either side of the
boundary had ever been in common ownership.
The recorder referred to the argument for Mr and Mrs Gallop that the presumption
did not apply because the ditch had been dug by Mr Aubrey Smith, which she had
rejected on the facts. She then said that it followed that the hedge and ditch rule
applied. With respect to her, it seems to me that this did not follow simply from
her rejection of the evidence put forward for Mr and Mrs Gallop as to how the
ditch came into existence. It would be necessary to consider what the probabilities
were as to how and when the ditch came into existence. Since the boundary had
existed for as long as anyone can tell, and at least from the 1860's, according to
the conveyancing documents, it would be necessary to form a view as to whether
the ditch was created before any hedge came into being along the relevant part of
the boundary. Since, even on Mr Steward's most extreme case as to the extent of
the ditch, it never went along the whole boundary as far as Newport Road, that is
something that would have to be taken into account when assessing the
probability as to when, how and why the ditch came into existence."
Highway - hedge to hedge presumption
Hale v Norfolk County Council
[2000] EWCA Civ 290
The hedge to hedge presumption is relied upon by highway authorities when they wish
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to argue that a fence or hedge has been erected adjacent to a highway so as to indicate
that the fence or hedge has been erected by reference to highway needs; ie that all the
land between the hedges / fences is dedicated to the highway. An early statement of
the "hedge to hedge" presumption can be found in R v United Kingdom Electric
Telegraph Co (1862) 31 LJ (MC) 166:
"Taken altogether, I think it comes to this, that, prima facie, when you look at a
highway running between fences, unless there is something to shew the contrary,
the public have the right to the whole, and are not confined to the metalled part of
it."
However, that is too wide a statement of the principle and over the years the principle
has been refined. The mere fact that a road runs between fences or hedges does not of
itself give rise to any presumption. Chadwick LJ:
"32. the first question to be decided is whether the fence was erected (or the
hedge established) in order to separate land enjoyed by the landowner from land
over which the public exercised rights of way. In other words, did the landowner
intend to fence against the highway? If that question is answered in the
affirmative, then there is a presumption, which prevails unless rebutted by
evidence to the contrary, that the land between the fence and the made-up or
metalled surface of the highway has been dedicated to public use as highway and
accepted by the public as such. It is unnecessary to prove an intention to
dedicate; or to prove acceptance by actual user. Both dedication and acceptance
will be inferred. And it follows that, where that question can be answered in the
affirmative in relation to the fences or hedges on both sides of a made up or
metalled surface used as a highway, there will be a presumption that the whole of
the land between those fences or hedges has been dedicated to, and accepted for,
highway use. That is the basis for the "hedge to hedge" presumption.
33. It seems to me much less clear that there is any foundation for a presumption
of law that a fence or hedge which does, in fact, separate land over part of which
there is an undoubted public highway from land enjoyed by the landowner has
been erected or established for that purpose. It must, in my view, be a question of
fact in each case. To take an obvious example: there could be no room for any
such presumption unless the highway pre-dated (or was contemporary with) the
fence or hedge. If it were unknown which came first, I can see no reason in
principle for making an assumption - or adopting a presumption - that the
landowner fenced against the highway rather than that the highway followed the
line of the existing fence. Whether it is right to infer, as a matter of fact in any
particular case, that the landowner has fenced against the highway must depend
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on the nature of the district through which the road passes, the width of the
margins, the regularity of the line of hedges, and the levels of the land adjoining
the road; and (I would add) anything else known about the circumstances in
which the fence was erected. If nothing is known as to the circumstances in which
the fences were erected, the fact that the soil of a highway and the adjoining land
on each side was once in common ownership and that the highway is separated
from the adjoining land by continuous fence lines may well enable a court properly
to infer that the landowner has fenced against the highway; that is to say, "that
the fences may prima facie be taken to have been originally put up for the
purpose of separating land dedicated as highway from land not so dedicated".
Goodmayes Estates Ltd v First National Commercial Bank Ltd
2004] EWHC 1859 (Ch).
This is an example in which the presumption was applied, and was not rebutted by
evidence to the contrary. An intention to dedicate and acceptance by user were inferred.
The edge of the metalled area did not form the boundary line and proposed highway
works did not encroach upon the claimants land.
Bexley London Borough Council v Maison Maurice Limited
[2006] EWHC 3192 (Ch)
In considering whether a small strip of land ("the ransom strip") was part of the
highway Lewison J summarised (at para 44) in clear terms the principles that apply to
the hedge to hedge presumption, applying the recent decision of the CA in Hale v
Norfolk County Council and other cases:
(i)The mere fact that a road runs between hedges or fences does not give rise to
any presumption;
(ii) It is necessary to decide, as a question of fact, whether the fence was erected
in order to separate land enjoyed by the landowner from land over which the
public had rights of way;
(iii) If that intention is established, then there is a presumption that the land
between the fence and the metalled or made up surface of the highway has been
dedicated as part of the highway;
(iv) But the presumption, even where it exists, is rebuttable by evidence to the
contrary;
(v) There is no presumption that a fence which does in fact separate land over
part of which there is a public right of way from land enjoyed by the landowner
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has been erected in order to demarcate the boundary of the highway. Whether it
has or not is a question of fact in each case;
(vi) In deciding that question, the court must take into account everything that is
known about the circumstances in which the fence was erected.
On the facts, the judge found that the presumption did not apply and that the strip was
in the ownership of the local authority. This prevented the neighbouring owner from
having access to the highway. However, there was a second issue in the case; ie
whether the local authority could be estopped from denying that the defendant had a
right of access over the ransom strip? It is not possible to raise estoppel against a local
authority when it is exercising its statutory powers. However, in this case it was acting
as a private land owner. It was therefore capable of being estopped from denying the
defendant access over the ransom strip to the public highway (para 64).
On the facts an estoppel operated.
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