'Next time you determine the extent of a rural site, look carefully at the boundary - 'your' site might be 5 metres or so bigger than you think'
In 1985 Mr Instey enlarged his garden by purchasing part of a field from Mrs Burton of Home Farm. The land adjoined another field, owned by Wibberley Building Ltd, which had formerly been part of Saverley Green Farm. The two farms had been divided by a hedge and ditch - the hedge being on the Home Farm side of the ditch.
Following acquisition, Instey 'grubbed up' the hedge and erected a fence on the far side of the ditch. Wibberley, believing that the boundary was denoted by the hedge, took legal action and the court found that the strip of land which Instey had 'taken' had indeed belonged to Wibberley. This judgment was affirmed at the subsequent appeal.
But Instey took the matter to the Lords - and won. The ruling was fascinating. The burden had been on Wibberley to show that it had better title, rather than Instey who was 'in possession'. (Possession is, in itself, 'good' title against anyone who cannot show a prior, and therefore better, right to possession: Asher v Whitlock 1865.)
The question was therefore whether Wibberley had acquired a title in the strip. The title of Saverley Green Farm could be traced back to the seventeenth century and had always been in separate ownership from Home Farm. Wibberley's action had been based on the conveyancing documents for the sale of Home Farm to Mrs Burton by Beard back in 1975, which contained a plan showing the boundary between the two farms at the hedge centre. This had persuaded the judges in Wibberley's favour both in the initial action and in the appeal.
In overruling them and finding for Instey the Lords gave two reasons: firstly, it must be assumed, in the absence of other evidence, that an owner's land extends to the edge of a ditch on the far side of a hedge. This is because 'a man making a ditch (cannot) cut into his neighbour's soil, but usually cuts to the extremity of his own land (throws) the soil which he digs out upon his own land, and (often) plants a hedge on top of it' (Vowles v Miller 1810). Draw it for yourself - I had to.
Lord Hoffman could find no evidence that past owners of the two farms had ever challenged or varied this interpretation, so he concluded that the ditch beyond the hedge had originally been dug upon his own land by one of Mr Instey's predecessors in title, and that the boundary was 'beyond that ditch'.
Thus the strip of land that comprised both the hedge and ditch belonged to Mrs Burton, who had sold to Instey.
Furthermore, and with resounding logic, Lord Hoffman pointed out that not only could Wibberley not affirm title by reference to its own deeds, but if the sale of Home Farm to Mrs Burton back in 1975 had intentionally excluded the disputed strip of land (as Wibberley alleged), then it remained in the ownership of her predecessor in title (Mr Beard) who had, in those circumstances, sold her what was logically only part of his land. Hoffman could see no reason why Beard would have wished to retain such a strip, saying that it was more probable that there had simply been a mistake in the Beard/Burton conveyance plan which was qualified as being for 'purposes of identification only'.
The Lords therefore decided that the 1975 intention had clearly been to transfer all the land that comprised Home Farm to Mrs Burton, and that accordingly that part of it which was sold on to Instey must logically include the strip up to the boundary.
So, next time you determine the extent of a rural site, look carefully at the boundary - 'your' site might be 5 metres or so bigger than you think. You'll be flavour of the month if you find a few more house plots in what the client has assumed is a hedge and ditch in the ownership of his neighbour.
And if you have ever built on such land? Keep very quiet!