Boundary rules and the human factor

Do you know about the hedge and ditch principle?  It’s an ancient rule that can be a shaft of sunlight through the fog of a rural boundary dispute.

In a case in 1810, a few years before the Battle of Waterloo, Mr Justice Laurence 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; and often, if he likes it, he plants a hedge on top of it.”

It seems at first almost a comical idea – the judge cannot have known what any particular farmer did in the past, he was making it up.  But the Court of Appeal re-affirmed the principle in 2015 in the case of Parmar v Upton.  And, when you think about it, it is an excellent rule – simple and easy to apply, and bringing a bit of certainty to boundary questions in the country.

Having said that, it may only be a starting point.  It does not apply if the boundary was fixed after the ditch was dug.  It can also be overruled by what the title deeds say.  In the Parmar v Upton case, although the rule ultimately proved decisive, this was only after significant time and costs had been spent by the parties.

Often, the problem is not about boundaries – it is about the relationship between individuals.  Neighbours fall out, they stop talking to each other, then, when there is an issue, it escalates. 

The skill of the solicitor in a boundary dispute can be a subtle one.  Court proceedings may sometimes be necessary, but approaching the situation firmly but diplomatically can often achieve a better result for the client.   

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