The hedge and ditch presumption

Yours or mine? Hedge your bets

Gazing over the rolling countryside, it is common to be immediately aware of the obvious boundaries between parcels of land. Whether it’s stone walls, hedges, natural ditches or fencing; the boundaries tend to be obvious. These physical barriers draw our eye and lead us to an immediate conclusion; a barrier represents a boundary. Right? Wrong.

You could be forgiven for assuming your neighbour’s field boundary ends with the bordering hedge. You might be surprised to learn, however, that the ditch which is on ‘your side’ of the hedge might actually belong to your neighbour. Unless proven otherwise, there is a legal presumption that where two separately owned parcels of land are divided by a hedge and a ditch, the boundary is along the opposite edge of the ditch from the hedge.

The ‘hedge and ditch presumption’ dates back to the early 1800s, yet many landowners remain blissfully unaware of this legal obscurity. To make matters more complicated, the ‘presumption’ is actually two presumptions. The first, determined in 1991, is that that ditch would have been dug after the boundary was drawn. The second, determined all the way back in 1810, is that landowners would stand at the boundary of their land in order to dig the ditch. This would result in them throwing the earth onto their own land to create the bank on which the hedge could then be planted. Put plainly, if there is a hedge and a ditch, but you can walk to the edge of your land and straight into the ditch, the ditch is probably not yours.

So, perhaps you’ve now learnt the bordering ditch you thought was yours might actually fall under the presumption and in fact belong to your neighbour. However, you’re not concerned because you have an obvious legal argument against this; you’ve tended the hedge for the last five years or you’ve always cleaned the ditches, so you have clearly become the rightful owner by default. Right? Wrong again. Unless you meet some very express criteria, then there is no way around the hedge and ditch presumption.

There could be some light at the end of the tunnel, however, if the ditch contains a watercourse. Where there is a flow of water in someone else’s ditch bordering your land, you could be a ‘riparian landowner’. Riparian rights give discrete legal rights and responsibilities over the watercourse and the ditch, but more importantly, there is an automatic legal presumption that a riparian landowner owns the land up to the centre-point of the watercourse. So, if the ditch is the wrong side of the hedge to be yours but it’s got a flow of water, you might still own half.

It all seems a little perplexing doesn’t it. All we’ll say is we don’t make the rules, but we’re happy to explain them to you and provide guidance should you need it. We’ve got a friendly and experienced commercial property team here at Crombie Wilkinson on 01653 600070 and we’re ready to help with your queries.