Stream boundary and "Ad medium filum"

Re: Stream boundary and "Ad medium filum"

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

It would also be possible to argue that the seller measured from th edege of the stream simply to keep themselves from wading into the middle to identify an accurate measurement from that mid point.

I recently measured some farm land that was being sold using the outside edge of a large patch of nettles along the road side to identify where the inner boundary was to be located. There was no intention other than to define one accurate boundary where a fence had to be erected.

There was no dispute that the overgrown boundary was not being included in the sale. It was just the measurement to identify the new boundary position would have been too difficult standing amongst nettles.

I would have also done the same if a stream was involved, because th epoint was to identify a new boundary that defined the property being sold.

The problem here is that would only be one of the arguments if matters had to be settled in court.
Conveyancer appears to favour the other argument that the sale did not include the mid point of the stream. It's the words "legal argument" that most impact on this situation.
pilman
 
Posts: 2840
Joined: Thu Mar 11, 2010 5:08 pm

Ads are not endorsed by www.gardenlaw.co.uk or the staff thereof and visitors should perform their own due diligence on the product or service offered.
 

Re: Stream boundary and "Ad medium filum"

Postby Conveyancer » Sun May 22, 2016 12:36 pm

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?).


That is not what the law says. What the law says is that there is a rebuttable presumption that a conveyance of land adjoining a watercourse includes up to the middle of the watercourse. One way the presumption is rebutted is if the terms of the conveyance indicate that no part of the stream is included. Your conveyance does that, not by expressly excluding any part of the stream, but by specifying that the boundary is the edge of the stream. There is no difference between

The boundary is the edge of the stream

and

The stream is excluded
If you have benefited from advice on this site please consider contributing to a cancer charity.
Conveyancer
 
Posts: 5609
Joined: Wed Sep 07, 2005 3:19 pm
Location: Andalucía

Re: Stream boundary and "Ad medium filum"

Postby Conveyancer » Sun May 22, 2016 12:40 pm

pilman wrote:It would also be possible to argue that the seller measured from th edege of the stream simply to keep themselves from wading into the middle to identify an accurate measurement from that mid point.


I fear not. We have to go by the clear words of the conveyance.
If you have benefited from advice on this site please consider contributing to a cancer charity.
Conveyancer
 
Posts: 5609
Joined: Wed Sep 07, 2005 3:19 pm
Location: Andalucía

Re: Stream boundary and "Ad medium filum"

Postby Collaborate » Sun May 22, 2016 12:47 pm

The nature of streams is that from time to time their edges change.

In full flow they will be wider than when, during a drought, they may be either a trickle or have no width at all, having dried up.

I submit this observation merely to suggest that the wording in the original deed may not be as definite as first thought.
Collaborate
 
Posts: 1124
Joined: Mon Feb 23, 2015 10:17 am

Re: Stream boundary and "Ad medium filum"

Postby Conveyancer » Sun May 22, 2016 1:03 pm

Collaborate wrote:The nature of streams is that from time to time their edges change.

In full flow they will be wider than when, during a drought, they may be either a trickle or have no width at all, having dried up.


All true, but just because the precise edge of the watercourse cannot be determined does not alter the fact that you either own the whole stream, up to the mid-line or nothing at all.
If you have benefited from advice on this site please consider contributing to a cancer charity.
Conveyancer
 
Posts: 5609
Joined: Wed Sep 07, 2005 3:19 pm
Location: Andalucía

Re: Stream boundary and "Ad medium filum"

Postby rovpaul » Sun May 22, 2016 6:41 pm

arborlad wrote: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?


I'm to the east of the stream to a distance measured 30 foot from the eastern edge of the stream.
rovpaul
 
Posts: 29
Joined: Wed Jan 27, 2016 10:51 am

Re: Stream boundary and "Ad medium filum"

Postby rovpaul » Sun May 22, 2016 8:54 pm

pilman wrote:It would also be possible to argue that the seller measured from th edege of the stream simply to keep themselves from wading into the middle to identify an accurate measurement from that mid point. I recently measured some farm land that was being sold using the outside edge of a large patch of nettles along the road side to identify where the inner boundary was to be located. There was no intention other than to define one accurate boundary where a fence had to be erected.


I agree Pilman. The Title Deed was prepared in February of that year and so the stream would have been flowing fast and 6 foot deep in many parts so it would have been impractical to measure from the middle of this hence why I believe the eastern edge was chosen simply as a more convenient point to measure from. However, while it may never have been the intent to exclude the stream, the legacy of all of this is this is I'm now sat with a title deed which implies that it excludes my half of the stream. The Council won't let me put a bridge over it to accommodate the new footpath as it constitutes trespass and I guarantee that the apparent owner will not allow access out of spite unless I grant them a right of way elsewhere to land that they are trying to develop. Having waited for 2 years to get to this point to get the footpath diverted and with Natural England, Wildlife Trust, Ramblers and Parish Council all on board with the proposed route, I'm now potentially scuppered with this issue.

Does anyone have any advice on how this gets resolved? Could Adverse Possession not apply on the basis that the watercourse is fenced entirely in my land for sole use and we own a cross section across the entire stream further down so the apparent owner of our half further up has had no means of access to it for 30 years and has no visibility of it? Do I also have any recourse to our solicitor as they have a letter from the original owner when we bought the land saying that he owned up to the middle of the stream? Should they not have checked this statement more closely against the title as they also confirmed to us when we bought it (although I have nothing in writing to this effect) that if we own up to the boundary then we own up to the middle? What can they do to challenge this and should I have to pay for them to do so given their apparent oversight at the time of conveyance?
rovpaul
 
Posts: 29
Joined: Wed Jan 27, 2016 10:51 am

Re: Stream boundary and "Ad medium filum"

Postby Conveyancer » Sun May 22, 2016 10:34 pm

I said above that adverse possession was a non-starter but it may be worth giving it a go if you have the stream fenced in with your land. However, even though enclosed you would still have to show that you were in possession of the stream in some meaningful way. The fact that the possible "true" owner cannot get to the stream is of no relevance. A potential problem is that the LR may reject the application on the basis that the general boundaries rule applies and that you already have a title which may include the stream or half of it. Your counter argument would be that you have a document which shows you never had title to the stream - but once you do that you are pretty much prevented from arguing the contrary later, certainly in any dealings with the LR.

I am not sure that at this stage it is worth considering whether you have a claim against your solicitor because it will not help to clarify the position. However, it should be noted that there is an absolute time limit of 15 years for a negligence claim. How long ago did you buy the land?

I do not have any bright ideas as to how to get round the problem. It is the council you need to convince. If my interpretation of the conveyance is wrong the wording of the conveyance still casts sufficent doubt to justify the council's stance.
If you have benefited from advice on this site please consider contributing to a cancer charity.
Conveyancer
 
Posts: 5609
Joined: Wed Sep 07, 2005 3:19 pm
Location: Andalucía

Re: Stream boundary and "Ad medium filum"

Postby arborlad » Mon May 23, 2016 7:57 am

Conveyancer wrote:I A potential problem is that the LR may reject the application on the basis that the general boundaries rule applies and that you already have a title which may include the stream or half of it. .



Could the boundary be determined, one requirement seems to be in place, the agreement of the two neighbours, could the fact that a stream is being used defeat the production of a certified plan with an accuracy of 10mm.
arborlad

smile...it confuses people
arborlad
 
Posts: 7386
Joined: Sun Jul 09, 2006 6:30 pm
Location: Hertfordshire

Re: Stream boundary and "Ad medium filum"

Postby Conveyancer » Mon May 23, 2016 9:36 am

arborlad wrote:
Conveyancer wrote:Could the boundary be determined, one requirement seems to be in place, the agreement of the two neighbours, could the fact that a stream is being used defeat the production of a certified plan with an accuracy of 10mm.


The snag is that there is uncertainty as to who is, strictly, the neighbour.

Where the red line on the title plan follows a physical feature such as a road, ditch, wall or stream the rule is, in the absence of any note on the register, that the boundary lies immediately to one side or the other of the feature or somewhere in it. If you produce evidence that the boundary is in a particular place (and presumptions are not evidence) the LR will just say "Fine" and do nothing. Proving where the boundary is is not quite the same thing as proving exactly where it is, which is what is required if you cannot get your neighbour's agreement. Few title deeds meet the exacting requirements of the LR.
If you have benefited from advice on this site please consider contributing to a cancer charity.
Conveyancer
 
Posts: 5609
Joined: Wed Sep 07, 2005 3:19 pm
Location: Andalucía

Re: Stream boundary and "Ad medium filum"

Postby pilman » Mon May 23, 2016 1:34 pm

"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"
There is mention of the bed of the stream. Can that wording be used to confirm inclusion or exclusion of the stream?

In a planning drawing a cross section shows a point drawn part way through a house plan, which is why I found it difficult to understand what was meant in the parcels clause.

It does not seem that there is a solution that would not be open to disagreement between parties that have a vested interest in having an opposite conclusion from the other party.

An application for adverse possession would mean that Land Registry would serve notice on the person who transferred the land, so that it could be established if that person will object.
I would also send off a SIM form to Land Registry with the small fee required to confirm whether the stream is shown as unregisterd land on the Index Map, or is it known that there was a single registered title for the original land which now has green lines drawn on the title plan to identify the land that had been transferred over the years that was given separate titles.
That would mean that a claim to adverse possession would be under the new law relating to registered land, rather than a claim in respect of unregistered land.
pilman
 
Posts: 2840
Joined: Thu Mar 11, 2010 5:08 pm

Re: Stream boundary and "Ad medium filum"

Postby Conveyancer » Mon May 23, 2016 3:16 pm

pilman wrote:
"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"


There is mention of the bed of the stream. Can that wording be used to confirm inclusion or exclusion of the stream?


No, because the description falls into three distinct parts:

...being (a) a strip of land 15 foot wide measured from the centre of the existing hedge on the north side of OS4239 (b) continuing as a 15 foot wide cross section of the bed of the stream and (c) 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
If you have benefited from advice on this site please consider contributing to a cancer charity.
Conveyancer
 
Posts: 5609
Joined: Wed Sep 07, 2005 3:19 pm
Location: Andalucía

Re: Stream boundary and "Ad medium filum"

Postby Clifford Pope » Tue May 24, 2016 4:24 pm

"The new route crosses a stream about 7 feet across for which we already have an approved bridge which we can use"

Can't you stand on the middle of the bridge to take measurements?

How long has the bridge been there?
Clifford Pope
 
Posts: 400
Joined: Tue Aug 25, 2009 1:18 pm

Re: Stream boundary and "Ad medium filum"

Postby rovpaul » Tue May 24, 2016 5:08 pm

Clifford Pope wrote:"The new route crosses a stream about 7 feet across for which we already have an approved bridge which we can use"

Can't you stand on the middle of the bridge to take measurements?

How long has the bridge been there?


The approved bridge is on the existing route of the footpath about 100 metres further upstream squarely on our land. The intention is to move the route of the footpath to a new point further downstream so the bridge does not currently exist there and and the existing one would be moved to this location. The problem arises from the fact that it is the ownership of the stream at the point where the bridge is proposed to go which is in question. The land upon which it rests either side is not in dispute and is agreed by all parties, but to put the bridge over a stream which we don't own could constitute trespass.
rovpaul
 
Posts: 29
Joined: Wed Jan 27, 2016 10:51 am

Re: Stream boundary and "Ad medium filum"

Postby MacadamB53 » Tue May 24, 2016 5:42 pm

Hi rovpaul,

to put the bridge over a stream which we don't own could constitute trespass.

the only person who can claim it is a trespass is the owner - not the council.

Kind regards, Mac
MacadamB53
 
Posts: 6033
Joined: Mon Dec 10, 2012 12:13 am

Ads are not endorsed by www.gardenlaw.co.uk or the staff thereof and visitors should perform their own due diligence on the product or service offered.
 
PreviousNext

Return to Boundaries

Who is online

Users browsing this forum: No registered users and 5 guests