IAN BARNARD is associate solicitor, agricultural law and commercial property at the Malton office of Crombie Wilkinson Solicitors LLP

MANY of you will be aware of the "hedge and ditch" presumption in relation to the ownership of boundaries through family history, talking with neighbours or even the odd conversation down the village pub, but what is the legal position?

In the first instance, the presumption only holds true for agricultural land where the two properties are divided by a hedge and a ditch (man-made) and the boundary is presumed to be on the opposite edge of the ditch from the hedge. The reasoning behind this is that the owner would have originally stood on his boundary and dug the ditch on his own land, placed the spoil behind him on his own land forming a bank and then plant a hedge on the bank.

So where is the boundary? To complicate matters, there are two types of boundary, a legal and a physical boundary. The legal boundary is that contained within your title deeds which separates your land from your neighbours, but unless you have particularly accurate and generally older title deeds confirming ownership of boundaries, the position is not precise. In particular, in registered land the title plan is only regarded as indicative only and the exact line of the boundary is left undetermined primarily to avoid boundary disputes.

Can the boundary be fixed? An application to the Land Registry can be made to fix the boundary and this is where the hedge and ditch rule can prove helpful. Unless there is anything to rebut the presumption that the hedge and ditch rule does not apply, then the presumption will be strong evidence as to the position and ownership of the boundary. Recent case law has confirmed that even when the hedge has been removed, as if often the case, provided that evidence can be produced to "prove" the hedge and ditch rule, then the boundary remains that as marked by the hedge and the ditch, unless there is any contrary agreement between the neighbouring landowners.

There are a number of situations where it might be useful to fix a boundary or at least confirm with your neighbour where the boundary actually lies.

For example, if a ditch is piped and filled in or a fence is replaced with a hedge, and of course if the matter escalates into a full blown boundary dispute, then any evidence that can be produced to support the "hedge and ditch" rule will obviously leave you in a strong position. So whatever your reason for reviewing your boundaries, for further advice please contact one of our agricultural team, who will be more than happy to assist.