Stream boundary and "Ad medium filum"

Re: Stream boundary and "Ad medium filum"

Postby arborlad » Sat May 21, 2016 12:18 pm

rovpaul wrote: "Board Attachment has reached it's quota"



Not really able to help, but this thread may go some way towards explanation: viewtopic.php?f=9&t=20208
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Re: Stream boundary and "Ad medium filum"

Postby Conveyancer » Sat May 21, 2016 3:58 pm

The conveyance quite clearly says the measurement starts at the edge of the stream. So what you have is a strip of land 30 feet wide with the edge of the stream as one boundary. Any possible doubt is removed by another part of the land being described as "measured from the centre of the existing hedge". In one case the centre of a hedge is specified and in another the edge of a stream. That has to rule out the boundary starting mid-stream. If the intention was to include one half in width of the stream it would have said so.

A presumption is not so much a starting point as a default. If the deeds are clear presumptions do not come into it. The way the land is described has to exclude any part of the stream. An express exclusion was not necessary because what was included was defined as extending only from (=up to) the edge of the stream.
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Re: Stream boundary and "Ad medium filum"

Postby rovpaul » Sat May 21, 2016 5:04 pm

The conveyance quite clearly says the measurement starts at the edge of the stream. So what you have is a strip of land 30 feet wide with the edge of the stream as one boundary.


Thank you Conveyancer. If that is the case, in your experience how do such issues get resolved as our solicitor believes that we own our half of the stream as the reference to the measurement in the title could be there simply because it is easier to take the edge of a stream as the datum point rather than the middle of a flowing stream? The title doesn't explicitly determine who owns the stream. Also, as the title deed for the other side makes no reference to the edge of the stream, the land owner presumably own their side to the middle so we effectively have a scenario where they own one half and another neighbour owns the other side even though the stream flows through land which has been fenced off entirely in our garden for the last 30 years. Presumably, we need approval from the neighbour to put a bridge over their half of a stream which they don't know that they own? This will become an issue as this neighbour wants right of way across our land to develop an adjacent field (they are property developers) so will hold us to ransom over this 3.5 foot wide portion of stream.
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Re: Stream boundary and "Ad medium filum"

Postby rovpaul » Sat May 21, 2016 5:32 pm

One further question, if what Conveyancer says is true (i.e. one landowner owns half the stream up to the middle and the land up to it on their side, and another neighbours owns the other half up to the middle, and I own the land up to it on the other side), how does this affect my responsibilities as a riparian owner? These state that I am responsible for a watercourse next to my land. Does this mean that I have to maintain the banks and half the stream even if I don't own it?! Alternatively, how is the neighbour expected to maintain the watercourse given that they have no access to it? I'm still struggling with the concept that the conveyance was intended that the seller of the land wanted to retain up to the middle half of a stream that they would have no access to. Surely any reasonable arbitration would reason that this was not the intent?
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Re: Stream boundary and "Ad medium filum"

Postby ukmicky » Sat May 21, 2016 5:41 pm

rovpaul wrote:One further question, if what Conveyancer says is true (i.e. one landowner owns half the stream up to the middle and the land up to it on their side, and another neighbours owns the other half up to the middle, and I own the land up to it on the other side), how does this affect my responsibilities as a riparian owner? These state that I am responsible for a watercourse next to my land. Does this mean that I have to maintain the banks and half the stream even if I don't own it?! Alternatively, how is the neighbour expected to maintain the watercourse given that they have no access to it? I'm still struggling with the concept that the conveyance was intended that the seller of the land wanted to retain up to the middle half of a stream that they would have no access to. Surely any reasonable arbitration would reason that this was not the intent?
Your questions are thoughts that I had and part of why I came to the conclusion I did previously.
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Re: Stream boundary and "Ad medium filum"

Postby arborlad » Sat May 21, 2016 5:44 pm

This may help as well: viewtopic.php?f=1&t=19160

Could you apply to Land Registry to have the titles rectified and showing that you and the neighbour own to the centre of the stream?
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Re: Stream boundary and "Ad medium filum"

Postby rovpaul » Sat May 21, 2016 6:10 pm

An express exclusion was not necessary because what was included was defined as extending only from (=up to) the edge of the stream.


I'd have thought that the seller would have had to expressly say that it was their intent to retain the stream though Conveyancer, or explicitly exclude it from us as if our boundary is defined as being from the edge of the stream, then everything else I've read suggests that if you own up to the boundary then by definition you own up to the middle unless otherwise expressed. I see your point that the title does express that the land is measured from edge of the stream so could be interpreted that this excludes the stream, but if the legal presumption is that if you own up to the boundary then you own up to the middle of the stream, then surely they would not need to state that we own up to the middle of the stream if it's recognised in law alreadythat if you own up to the edge then you own up to the middle of the stream. If this wasn't their intention, then I'd have thought that this should have been expressly said that the stream was being retained by the seller or that we own up to the edge of the stream ONLY. I sense that you are hugely qualified in such matters Conveyancer and I am a layman but to my untrained eyes the title deed confirms that we own up to the edge and, as there is nothing said to the contrary about the ownership of the stream, then the legal presumption should be that we then own up to the middle of the stream surely?
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Re: Stream boundary and "Ad medium filum"

Postby cleo5 » Sat May 21, 2016 8:06 pm

But the stream edge may not always stay the same. We own up to half of the stream(2/3 ft wide). In heavy rains our bank is washed away. In dry weather it's a trickle The other side is stone walled. If one lived in a high flood area then huge chunks of bank could be washed away. So the 30ft measurement in time becomes meaningless.

Yes, if you own half the stream you have to maintain your bit(which you have done) , keeping it clear so as not to impede the rights of others.

If someone other than you or your neighbour (across the stream from you) owns your half of the stream then does his land adjoin the stream further up or not. If not how can he own your half of the stream ?
You'll need perhaps to see his deeds to see if he still holds any riparian rights.

If the neighbour across the stream owns all of it(doubtful according to Riparian Rights) then you have no problem as he is accepting of the bridge being erected isn't he? Or have I misread the situation.?
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Re: Stream boundary and "Ad medium filum"

Postby Conveyancer » Sat May 21, 2016 8:28 pm

I do not think that the solicitor's argument that it is easier to measure from the edge of a stream than the middle holds much water. It is after all also easier to measure from the edge of a hedge. However, the point has to be that the deed says the measurement is taken from the edge. We cannot look behind the deed or speculate why it is as it is. If half the bed was not conveyed it was not conveyed. No court can award it to you on the basis that on any reasonable view the conveyance was wrongly worded.

It is entirely possible for oddities to arise in the conveyancing process. Whilst it has to be conceded that it is highly unlikely that the former owner intended to retain half the width of a stream he reserved no right to get to, it is perfectly possible for that to have happened.

I am unable to say what your duties as a riparian owner are if you own the bank but not any of the bed. However, should it be the case that your duties would extend to part of the bed that would not give you any rights of ownership you did not have. The fact that the original owner may own part of the bed and have obligations he cannot perform does not have the effect of transferring the part to you.

What we are stuck with here is the wording of the deed. The wording is such that we need to look no further than the deed. No presumptions apply as they are not needed. The presumption can be phrased this way:

If you own up to the edge of a stream you also own up to the middle of the stream unless:

(a) the terms of the relevant assurance are such that the stream was excluded; or,

(b) the terms of the relevant assurance are such that it has to be implied that no part of the stream was included, for example if rights were granted over it; or,

(c) it is shown that when the relevant assurance was made someone had a better title to the stream than the grantor - no one can convey what they do not have.


When it comes to (a) an express statement that the stream is excluded clearly puts the matter beyond doubt. Otherwise, exclusion has to depend on the precise wording and there can be exclusion even if the description fails to use words of exclusion. I do not see how the words “a strip of land 30 foot wide measuring from the eastern edge of the stream” can convey any part of the stream.
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Re: Stream boundary and "Ad medium filum"

Postby rovpaul » Sun May 22, 2016 7:50 am

If the neighbour across the stream owns all of it(doubtful according to Riparian Rights) then you have no problem as he is accepting of the bridge being erected isn't he? Or have I misread the situation.?


The neighbour across the stream owns up to the middle of the stream and is happy for the bridge to be erected on land on his side and I own the land on the other. The issue is that if the other neighbour owns the half of the stream on my side then the fact that my bridge passes over this, even though it does not touch any part of it and even though they have no access to it, qualifies as trespass.
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Re: Stream boundary and "Ad medium filum"

Postby arborlad » Sun May 22, 2016 8:01 am

arborlad wrote:This may help as well: viewtopic.php?f=1&t=19160

Could you apply to Land Registry to have the titles rectified and showing that you and the neighbour own to the centre of the stream?




................unless part of that process alerted the original owner to your dilemma :?
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Re: Stream boundary and "Ad medium filum"

Postby MacadamB53 » Sun May 22, 2016 9:28 am

Hi rovpaul,

qualifies as trespass

only the landowner could decide whether he considers it a trespass.

Kind regards, Mac
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Re: Stream boundary and "Ad medium filum"

Postby rovpaul » Sun May 22, 2016 11:27 am

MacadamB53 wrote:Hi rovpaul,

qualifies as trespass

only the landowner could decide whether he considers it a trespass.

Kind regards, Mac


Therein lies the problem I'm afraid MacadamB53. The Council believe that the stream could be the other landowners so are suggesting I ask their permission for avoidance of doubt otherwise they could argue trespass. They won't move it unless I can prove the stream is not theirs or unless they agree. Either option means raising it with the neighbour who I'm 100% certain would not allow it unless we give them a right of way over our land elsewhere to unlock land they want to develop.
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Re: Stream boundary and "Ad medium filum"

Postby rovpaul » Sun May 22, 2016 11:38 am

Conveyancer wrote:I do not see how the words “a strip of land 30 foot wide measuring from the eastern edge of the stream” can convey any part of the stream.


Thanks but I'm still not clear on your argument that the title does not specifically need to exclude the stream for it to be excluded given that the deed is explicit that my land is up to the edge of the stream. If the presumption is that if your land is up to the stream then it is also up to the middle under ad medium filum aquae unless otherwise stated, then could it be argued that the deed confirms that my land is up to the edge of the stream and the law is that if is is up to the edge then it also includes up to the middle unless it is specifically excluded. It is not specifically excluded or otherwise stated. The deed does indeed verify it is up to the stream and, given that it does not exclude the stream from my land or include it in theirs, then could the default be that it is ours up to the middle? The law says that if the land is up to the edge, then it is up to the middle and the deed confirms it is up to the edge (so should arguably be up to the middle surely?). I get the argument that the fact that it states that it is up to the edge could imply that any of the stream is excluded but if the presumption is that land up to the edge includes up to the middle of the stream, shouldn't the deed more explicit about what is/isn't included else the presumption of ad medium filum aquae is the determining factor?
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Re: Stream boundary and "Ad medium filum"

Postby arborlad » Sun May 22, 2016 11:59 am

It really ought to be easier to add images in these circumstances :(

Seeing a sketch or plan would make understanding of the overall situation so much clearer.

It's stated that you own up to the Eastern edge of the stream (although I think I know the answer) - do we know if you are to the East or West of that stream?
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