More ad medium filum subtleties

More ad medium filum subtleties

Postby mineallmine » Tue Sep 11, 2012 1:29 am

Two properties are separated by an unadopted private access lane that is also a public footpath, so an official right of way with no registered width or features. Property A has a very old dwelling and its frontage is partly an old hedge and partly a wall. Property B has a relatively recent dwelling, it adjoins the right of way via a hedge planted in place of a fence that once enclosed what was a simple plot of land. Outside B's hedge (once fence) runs a man-made ditch, there as long as anyone can remember; the ditch protects the lane and property A and if not kept clear water will muddy and/or flood across to both of these, but not property B which, from its verge side inward, is on higher ground.
Just as A has no easements or references, the deeds of property B make no boundary reference of any kind, so one might assume this as either the hedge (once fence), or the ditch as an adjoining feature, but the new owners of property B claim a boundary along the lane verge of ditch, in other words on the right of way side of the ditch. The occupants of property A have always been free (at least 30 years or longer) to dig the ditch as necessary. The highway officer of the council is not interested in enforcing the full width of the way, and property B would like to expand (yes, some people like to expand for the sake of it) to fence off the ditch and possibly fill it in. There are no enclosure award references and no other factors thus far unearthed that further qualify the right of way so, whatever B's boundary is, one might assume an ownership of sorts to the middle of the way.
Now presuming that lazy rights of way officials only decide to enforce the width of the way as far as the verge of the ditch (or maybe that really is the correct assumption, can anyone comment on this assumption?), this gives property B the chance to fence off along the verge so even if property A were to try and go about clearing the ditch, they could no longer do so because of the fence, and any unwritten but assumed prescriptive rights to continue clearing the ditch would forcefully be forfeited. Now in the absence of any new evidence (all the critical subdivisions happened between enclosure and 1876) the owners of property A can of course decide to risk trespass charges based on their previous access and the fact that it is most likely on the face of it that the boundary is the hedge (once fence), however what would they do about the new fence that stops them getting in? Even if not on the real boundary, the new fence would therefore have been erected on the right of way (but nobody cares to enforce it,) and whatever the case, on land that is owned (if no documentation can rebut it) via ad medium filum viae, so what right would property owner A have to tear it down?
As far as I know it is not for anyone to enforce the width of the right of way other than the authorities, or could it be torn down by anyone who believes it to be encroaching on the right of way. In other words, assuming that the new fence is built not on the real boundary but on unregistered land owned only by way of ad medium filum, who is in the right to remove it, anyone? Could property owner A, on strong grounds that the real boundary must be the hedge (once fence), as until then assumed by all, tear down the new fence even though it is at the very least owned by way of ad medium filum? Or, in claiming a prescriptive right, might they be entitled to tear down enough of the new fence to get in and clear the ditch? Finally, if the ditch does not belong to the right of way, and the true boundary can ultimately be proven to be the hedge, that leaves a thin unregistered strip between the ditch and B's hedge, would that not mean that B has no frontage Band no ad medium applies? Bet no one knows.

Cheers
mineallmine
 
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