28 January 2015

Where does a boundary run where there is a lane, hedge and ditch between two properties and what rights do the owners of those properties have to use the lane. Disputes over details of land-ownership and rights can be critical to individuals' perceived enjoyment of their land. They can also give rise to personal (often entrenched) positions which can lead to a disproportionate expense in legal fees.

Gilks v Hodgson is an example of a case where both sides incurred costs far in excess of the value of the land to establish where their boundaries and rights lay.

Boundary Disputes

Boundary disputes usually arise where the precise boundary is not delineated or clear from the deeds. The Courts use physical features and legal presumptions to determine the boundary.

A road boundary is presumed to lie in the middle of the road. For a hedge and ditch, the boundary lies on the non-hedge side of the ditch.

An easement can be implied by prescription or lost modern grant, where it has been used for 20 years without the landowner’s specific permission.

The facts of the case

Clay Lane runs between two properties, next to a hedge and ditch. It was also a convenient shortcut for the Gilks who claimed ownership of the lane. Next door, the Hodgsons ran an alpaca farm and considered that the Gilks cars were upsetting the animals. The Hodgsons argued that the boundary was the middle of the ditch which had to be crossed to access the lane, meaning that the Gilks could not access the lane. The Gilks argued that the boundary was the middle of the lane and in any case, they would now have a prescriptive easement over any unowned part.

The Court's decision

The County Court agreed with the Gilks, that the boundary was the middle of the lane and that they had an easement by prescription for agricultural purposes.

The Hodgsons appealed. The Court of Appeal allowed the appeal in part. It determined that the boundary was in the middle of the ditch, not the lane, because the nature of the ditch meandered across land and did not abut the whole length of the lane. However, the Court did not overturn the finding of an easement by prescription (though the evidence of 20 years use was 'light'). The Court's message was 'a plague on both your houses' as neither achieved total satisfaction.

Caution on costs

The most remarkable (but predictable) aspect of this case was the cost, which the appeal judges were united in condemning. Mr Justice Clarke lamented the absurd waste of both parties’ effort, time and cost.

The area of land was small and was not essential to either party. The Gilks won damages of £3,500, yet the case cost approximately £500,000.

The case offers a reminder of the rate at which costs can escalate, even in relatively low-value matters, when personal enmity clouds the parties' sense of proportionality.

Gilks v Hodgson [2015] EWCA Civ 5

James Sutherland and Charlotte May are members of our leading Real Estate Disputes team.

Key contact

James Sutherland

James Sutherland Partner

  • Head of Real Estate Disputes
  • Dispute Resolution
  • Professional Negligence

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