Stream boundary and "Ad medium filum"

Stream boundary and "Ad medium filum"

Postby rovpaul » Fri May 13, 2016 4:54 pm

I had some terrific advice from this forum earlier this year for which I posted the successful outcome so hope you will oblige with the same wise counsel once again.

Situation is as follows:
- We are in the process of having a footpath diverted (after a 2 year wait, we have the backing of the Ramblers Association, Natural England, wildlife Trust, neighbours, Parish Council etc) and the Council Rights of Way (ROW) Officer visited last week prior to posting the order
- The new route crosses a stream about 7 feet across for which we already have an approved bridge which we can use
- However, following their visit the ROW officer conducted a land search and identified that the stream could be owned by a neighbour
- The history is that the neighbour used to own all the surrounding land and the stream passed through their land originally. They then sold off one side of the stream to our predecessors and the other side to another neighbour. The deeds for each show a very crudely drawn plan from the seventies showing the land up to each side of the stream passing to each neighbour. Our title deeds refer to our ownership as being from the eastern edge of the stream even though our solicitor told us when we bought the property that we would share up to halfway down the line of the stream with the adjoining neighbour.
- The Council's view though is that that the stream is, by default, still owned by the original neighbour (even though they have no means of access to it) and that we'd need their approval to put the new pedestrian bridge over the 7 foot wide stream.
- This creates a real problem as they are property developers and we know would hold us to ransom to grant them a right of way through our land onto a field of theirs which we believe they intend to develop if they could achieve a right of way (long story but, in short, we don't want to ask them for approval). We also don't believe that they are aware that this stream could be theirs (when they tried to sell their house a couple of years ago, the sale brochure showed a map of their land and didn't not show this stream as being under their ownership).
- The land registry title map for their land is as good as useless as it only shows their land as at 40 ago and the various parcels sold over the years since.
- Given that the stream in question acts as the boundary between us and the neighbour who acquired the other side of the land, I wonder whether the rule of "ad medium filum" applies whereby I understand that it is assumed that each of us owns half the boundary.
- Failing that, given that the neighbour had had no access to the stream for over 25 years, could we claim adverse possession over the stream?

Really hope you can advise. Thank you
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Re: Stream boundary and "Ad medium filum"

Postby rovpaul » Sat May 14, 2016 8:46 am

Sorry, one other question on my post - if we don't own half the stream down the middle shared with the property the other side of it under "ad medium filum" laws and if we can't claim adverse possession over the stream (which I'd hoped we could as we maintained it), should we still be able to put a bridge across it under "airspace" laws. My interpretation of airspace is that you can overhang someone's property as long as you don't "harm their enjoyment of it". As I own one side of the boundary where the bridge will rest and the neighbour the other side will allow me to put the other side on their land, it is only the neighbour who might be perceived to own the stream who the council are concerned about that could be affected and I wouldn't be touching the stream itself but the bridge would be suspended above it. I couldn't possibly be harming their enjoyment of the stream as they have absolutely no access to it.
I'd really welcome anyone's thoughts please?
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Re: Stream boundary and "Ad medium filum"

Postby span » Sat May 14, 2016 11:25 am

The current neighbor, who owns the opposite bank side of the stream - how's relations with him? Good, I presume?

What's to stop the two of you deciding to create your own bridge right now to join your properties "for the convenience of visiting each other" without reference to any future/possible works? Just a nice handy bridge between the two of you, for the two of you to use.

Which might, by sheer coincidence, be located and placed in exactly the correct position that any future work could handily take advantage of it....
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Re: Stream boundary and "Ad medium filum"

Postby rovpaul » Sat May 14, 2016 1:16 pm

The current neighbor, who owns the opposite bank side of the stream - how's relations with him? Good, I presume?

What's to stop the two of you deciding to create your own bridge right now to join your properties "for the convenience of visiting each other" without reference to any future/possible works? Just a nice handy bridge between the two of you, for the two of you to use.

Which might, by sheer coincidence, be located and placed in exactly the correct position that any future work could handily take advantage of it....


Thanks for the reply. Yes, relations with the neighbour on the opposite bank are excellent. However, I suspect that the problem will still apply in that if we put the bridge in now for our convenience, when the council come to look at that bridge as the possible route of the new public footpath, they will then contest that it can't be used for the public footpath as is over a stream which they perceive is owned by someone else. My intended argument is that the bridge won't touch the bed of the stream, it will only touch the land owned by me and the neighbour on the opposite bank with his consent. The only argument I can see is the bridge will pass through the airspace above the stream that the other neighbour may own but what I've read seem to suggest that I'd have to prove that I'm not affecting their enjoyment of the stream. They have no access to or visibility of the stream so I can't see that I'm affecting their enjoyment. My fear is that the Council will err on the side of caution and, for the avoidance of doubt, ask me to get the neighbours consent to put the bridge above what they perceive is their stream. Once alerted to the possibility that the stream could be theirs and that they could stop our footpath diversion application, they will almost certainly use this as leverage to re-open debate about me giving them a right of way elsewhere (longer story, posted in another thread!) in return from granting approval to build a bridge over this 7 foot wide stream.
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Re: Stream boundary and "Ad medium filum"

Postby ukmicky » Sat May 14, 2016 6:19 pm

The council are wrong , the default position is not that the neighbours own it. The legal default position is ad medium filum aquae.



The original landowners owned the stream . They transferred ownership of the land on both sides and the legal presumption is they also transferred ownership of the stream unless they not the council can show they never intended to pass ownership of the stream along with the banks .
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Re: Stream boundary and "Ad medium filum"

Postby pilman » Tue May 17, 2016 7:01 pm

That last posting correctly analysed the situation now that the original owner of land on each side of the stream has transferred ownership of the land to two new land-owners.

Land Registry published Parctice Guide 40 dealing with boundary matters.
https://www.gov.uk/government/publicati ... pplement-3

This is what was stated in that practice guide regarding streams.
11.3 Non-tidal rivers and streams

Where properties are separated by a natural non-tidal river or a stream, the presumption is that the boundary follows the centre line of the water (ad medium filum aquae) so that each owner has half of the bed.

If the course of the stream gradually changes over a period of time, the position of the boundary will change accordingly. See Accretion and diluvion - non-tidal rivers and streams. Changes as a result of human agency do not, however, lead to an alteration in the position of the boundary. Where there is a sudden, but permanent change in the course of the stream, whether or not it is due to natural causes, the boundary will remain along the centre line of the former bed.
It would be sensible to bring this legal presumption to the attention of the council, because the previous land-owners have no rights whatsoever over what the two current land-owners agree to do in respect of their land that includes the full width of the stream, with each owning one half of its width.
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Re: Stream boundary and "Ad medium filum"

Postby Conveyancer » Thu May 19, 2016 9:58 pm

They then sold off one side of the stream to our predecessors and the other side to another neighbour. [...] Our title deeds refer to our ownership as being from the eastern edge of the stream


That seems to be the key suggesting that the council are right. If on the sales the boundary in each case was stated to go up to the stream then that clearly rebuts the ad medium filum presumption. It is therefore puzzling that

...our solicitor told us when we bought the property that we would share up to halfway down the line of the stream with the adjoining neighbour.


It is difficult to see how a case can be made out for adverse possession of the stream.

Your argument that putting up the bridge will not affect the use of the stream is a non-starter. You have to go up quite a lot higher before you can argue there is no trespass.

This the sort of problem where a solution may be found by a close examination of both your own and your neighbour's title deeds. However, assuming it is unequivocal in both cases, a statement that the land sold extended to the edge of the stream would seem to trump everything else.
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Re: Stream boundary and "Ad medium filum"

Postby rovpaul » Fri May 20, 2016 9:38 am

Conveyancer wrote:

That seems to be the key suggesting that the council are right. If on the sales the boundary in each case was stated to go up to the stream then that clearly rebuts the ad medium filum presumption.


Thanks Conveyancer. What troubles me is that the title deeds seem ambiguous. They refer to us owning "a strip of land measuring from the eastern edge of the stream 30' wide" which could suggest that the edge of the stream was just used as the datum point from which the land was measured. There is nothing which categorically says that they retain ownership of the stream itself in our or their title deeds so I had presumed that the law of ad medium filum acquae applies given that this states that if the land is owned up to the stream boundary (and the fact that we own up to the edge of the stream suggests that we own up to the boundary) then it is presumed that we own up to halfway across unless it is otherwise defined. Also, this was the understanding of the previous owner and the land was used on this basis for the last 30 years. The neighbour has no access to this length of the stream as we own a 15' cross section of the stream further down so we have effectively had sole fenced off use of the stream which has been maintained as if it is ours on the assumption that this is the case so I would have thought that adverse possession would apply under those circumstances. I have a copy of the neighbours most recent title plan and it does not help as it shows the land as at 1984 and highlights the parcels which were sold off since rather than show what remains as their sole property now. When the neighbour tried to sell the property 2 years ago, their sales brochure showed the extent of their land but did not show the stream as part of the property. Any further comments would be very welcome.
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Re: Stream boundary and "Ad medium filum"

Postby arborlad » Fri May 20, 2016 12:01 pm

rovpaul wrote:- We are in the process of having a footpath diverted (after a 2 year wait, we have the backing of the Ramblers Association, Natural England, wildlife Trust, neighbours, Parish Council etc) and the Council Rights of Way (ROW) Officer visited last week prior to posting the order
- The new route crosses a stream about 7 feet across for which we already have an approved bridge which we can use



Have the Environment Agency been consulted, we had a design for a bridge in very similar circumstances to improve disabled access which all parties approved of because we could incorporate a shallow ramp, the EA wanted something much higher and wider, which precluded any sort of ramp in that location. We did resolve it in the end, but like you, a 2 year delay of the whole project.

I think it would be worth linking to your other thread: viewtopic.php?t=20203
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Re: Stream boundary and "Ad medium filum"

Postby Conveyancer » Fri May 20, 2016 1:24 pm

Before making any further comment I think I would like to see the whole of the property description ("parcels") of the document from which you quote. (You can of course omit place names if you wish.) A copy of the deed plan would also be welcome.
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Re: Stream boundary and "Ad medium filum"

Postby rovpaul » Fri May 20, 2016 6:25 pm

Have the Environment Agency been consulted, we had a design for a bridge in very similar circumstances to improve disabled access which all parties approved of because we could incorporate a shallow ramp, the EA wanted something much higher and wider, which precluded any sort of ramp in that location. We did resolve it in the end, but like you, a 2 year delay of the whole project.


Thanks Aborlad. I believe the Council will contact the EA as part of their consultancy. Fingers cross, we should be OK on the basis that there is a 12 foot long pedestrian bridge which crosses the stream on the existing route which is simply going to be moved to the proposed location and the new stretch is not as wide. I've also got the results of the EA Flood Search which shows that the existing route is far more prone to surface flooding than the proposed new route which hopefully will alleviate their concerns (and played a part in Ramblers Association approving the new route).
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Re: Stream boundary and "Ad medium filum"

Postby rovpaul » Fri May 20, 2016 7:05 pm

Conveyancer wrote:Before making any further comment I think I would like to see the whole of the property description ("parcels") of the document from which you quote. (You can of course omit place names if you wish.) A copy of the deed plan would also be welcome.


Thanks very much indeed Conveyancer. I'd welcome your thoughts but when I scanned the Title Deed and Plan and edited out the names but unfortunately Garden Law keeps returning a message saying "PDF extensions aren't allowed" when I tried to upload a 635kb PDF (i removed the .PDF extension but it still rejected it). Does anyone have any advice on how to upload onto Garden Law please as I couldn't find any?
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Re: Stream boundary and "Ad medium filum"

Postby Collaborate » Fri May 20, 2016 8:49 pm

Try saving it as a JPEG
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Re: Stream boundary and "Ad medium filum"

Postby cleo5 » Sat May 21, 2016 9:01 am

Where have the posts gone?
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Re: Stream boundary and "Ad medium filum"

Postby rovpaul » Sat May 21, 2016 12:02 pm

I have tried to add a JPEG of the Title Deed & Plan but assume that Garden Law's site has some issues as I keep getting a message saying that "Board Attachment has reached it's quota" and it is only 200Kb file.

That being the case, I will transcribe the text from the Title as follows:

"The land shown edged with red on the plan being a strip of land 15 foot wide measured from the centre of the existing hedge on the north side of OS4239 continuing as a 15 foot wide cross section of the bed of the stream and continuing northwards as a strip of land 30 foot wide measuring from the eastern edge of the stream and along the west side of OS4740"

I realise that this is not ideal to interpret without sight of the map but our understanding is that, as an entire parcel of land is not being sold, a measurement has to be taken from a datum point somewhere in the parcel. In this case, it is taken from the eastern edge of the stream so that we know we own up to 30 feet away from this point. However, there is nothing which says that we don't own the stream and nothing in the title deeds of the seller to saw that they retained the stream, it just says that the edge is the point from which this is measured. The council say that the title plan of our land and the land sold to the neighbours on the other side of the stream only shows both of us owning up to the stream so, by default, the original seller still holds title to the stream itself. Legal presumption from ad medium filum acquae seems to suggest that this is not the case as, given that the title says that we own up to the boundary then we should own up to the middle of the stream too. I understand that this rule applies unless the title states anything to the contrary but my interpretation is that the wording in the title that we own "30 foot wide measuring from the eastern edge of the stream" does not imply anything about ownership of the stream itself, just that this is the point from which a measurement is taken to determine a 30 foot width for the land itself. How does this get resolved as our solicitor and the previous owner for 30 years interpret this as meaning that we own up to the middle of the stream while "Conveyancer" who posted earlier and the council both seem to interpret this as meaning that the original owner still owns the stream. This in itself can't be true anyway as the adjoining property who own the other side of the stream bought the entire parcel and there is no wording in their title about the boundary of stream so they must definitely own up to the middle of the stream. Surely this doesn't mean that we own the land up to the stream on one side, another neighbour owns the land the other side and up to the middle on their side, and yet another neighour owns the other half of the stream?!
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