REF/2005/1802

The Adjudicator to Her majesty’s Land Registry
LAND Registration act 2002

IN the matter of a reference from hm land registry

BETWEEN

Michael John Cole and Barbara Ann Cole

APPLICANTS

and

Shropshire County Council

RESPONDENTS

Property Address: Land adjoining Spring Bank House, Candle Lane, Woore CW3 9RJ
Title Number: SL166608

Before: Mr Rhys sitting as Deputy Adjudicator to HM Land Registry

Sitting at: Crewe County Court
On: Tuesday 24th and Wednesday 25th April 2007

Applicant Representation:	Mr Robert Moore of Counsel instructed by Messrs Knight & Sons
Respondent Representation:	Mr Richard Selwyn Sharpe instructed by Legal and Democratic Services Shropshire County Council

DECISION
___________________________________________________________________________

Cases referred to:

Micklethwait v Newlay Bridge Company (1886) 33 Ch D 133
Berridge v Ward 10 CB (NS) 400
Chorley Corporation v Nightingale [1906] 2 KB 612
Hanscombe v Bedfordshire CC [1938] Ch 944,
Attorney-General v Beynon [1970] 1 Ch 1
Alan Wibberley Building Ltd v Insley [1991] 1 WLR 894
Hale v Norfolk County Council [2001] Ch 717
J A Pye (Oxford) Ltd v Graham [2003] AC 419.  

1.	Mr and Mrs Cole were, at the material time, the registered proprietors of land and premises known as Spring Bank House, Candle Lane, Woore, Shropshire (“Spring Bank House”).  The property is bounded on its western side by a public highway known as Audlem Road, originally a Turnpike road.  On its north side it is bounded by another highway – in appearance a narrow lane – known as Candle Lane, which connects the Audlem Road with the Nantwich Road.  The junction between Audlem Road and Candle Lane forms the north western corner of Spring Bank House.  The house itself is accessed by a drive which runs southwards off Candle Lane, close to the boundary with the neighbouring property on the east known as The Orchard.  The physical boundary of the Coles’ property on its frontage with the two roads I have mentioned is formed by a substantial hedge above a bank.  There is a grass verge of varying width which lies between this boundary hedge fronting Candle Lane and the edge of the carriageway, and the verge continues around the corner with Audlem Road and runs southwards until it merges with the bank and disappears, some 20 or 30 metres from the corner.  

THE DISPUTE
2.	This dispute relates to that verge.  Mr and Mrs Cole contend that the entirety of the verge falls within their ownership and they wish to be registered with title to it. The Coles’ original application was made on 14th January 2005.  By letter dated 3rd February 2005 Shropshire County Council (“Shropshire”), which is the highways authority, made a conditional objection to the application.  Shropshire did not object to the Coles being registered as owners of the sub-soil in the verge, provided it was noted that the verge was part of the highway and the public highway rights over it were protected.  In practice, therefore, the real dispute is whether the verge is indeed subject to highway rights – that is, whether it forms part of the highway.  If it is part of the highway, the Coles’ registration as owners of the sub-soil would be of no practical value to them.  This dispute was referred to the Adjudicator by the Chief Land Registrar on 2nd November 2005.   I should perhaps point out that Mr and Mrs Cole are no longer married and, although Mrs Cole supported the application and provided a witness statement, she took no active part in the proceedings and did not attend to give evidence.

3.	The Coles acquired Spring Bank House in May 1985.  It is their case that, when the property was purchased, the appearance of the area between the hedges and the roads (namely the verge) was very different to its present appearance.  In particular, Mr Cole says that there was a wide ditch – anything between 1 and 2 metres wide – separating the hedges on Candle Lane and Audlem Road from the grass verge.  According to him, therefore, the “verge” was very substantially narrower than it is today, and not grassed.  Furthermore, he states that there was a post and wire fence between the ditch and the edge of the carriageway on both roads.  According to him, he filled in most of the ditch both on Candle Lane and Audlem Road with topsoil, leaving a much narrower ditch which can still be seen today.  He then grassed the newly-created verge, and since that time has kept it mown and tended.  Furthermore, he has over the years installed posts on the edge of the carriageway, preventing vehicles from driving on to the verge.  The Coles’ case is, therefore, two-fold.  First, they claim to be the documentary title owners of the verge.  Alternatively, they claim to have acquired title to the verge by adverse possession.  In both cases, they deny that the verge is or ever has been subject to highway rights.  Shropshire’s position is as follows.  First, it denies that the Coles can show documentary title to the verge, or that they can establish adverse possession.  If, however, the Coles can establish title to the verge, Shropshire asserts that the verge is subject to highway rights.  

THE CONVEYANCING HISTORY
4.	Before dealing with the evidence, I shall consider the conveyancing history and the issue of title.  When they purchased Spring Bank House in 1985 there was no compulsory registration in Shropshire, and it was not until 2003 (in connection with another transaction) that they were obliged to apply for registration of the property. For reasons which were not entirely clear to me, the Applicants did not produce in evidence the Conveyance by which they acquired Spring Bank House in 1985.  What they did was to produce a number of earlier conveyances, in particular an Indenture of 1872 and made between Samuel Hayward, Margaret Hayward, William Dickin, Henry Unwin (1) and Others (2).  By this Indenture, the land subsequently known as Spring Bank House was conveyed, by reference to the number given to it on the Tithe Commutation Map, together with the verbal description which I shall set out below.  This description was also used in subsequent Indentures, dated 12th June 1877 and 12th July 1882.  As I have said, I have not seen the most recent Conveyance but it is clear that the Coles did become registered as proprietors of Spring Bank House in 2003, presumably by reference to a conveyance.

5.	The description used in the Indentures which I have seen is as follows:
“All that piece or parcel of land situate near to the village of Woore in the Shropshire part of the Parish of Mucklestone called or known by the name of the meadow otherwise Banart’s Croft numbered on the Map or Plan made on the commutation of the Tithes of the Parish of Mucklestone in the Counties of Salop and Stafford “665” and containing according to such Map or Plan Two acres two roods and three perches bounded on all or most parts or sides thereof by the Turnpike Road leading from Woore to Audlem by the Highway leading out of such Turnpike Road to the Nantwich Turnpike Road….”.

Accordingly, the land which is now known as Spring Bank House was originally conveyed by reference to this description.   The Applicants had obtained a copy of the Tithe Map for the area, and a more recent transcription thereof, on which Field 665 was marked.   The scale – 6 inches to one mile (approximately 1:10000) – is very small and of no real use in deciding whether the verge was included.   Shropshire produced a copy of the 1902 edition (or revision) of the Ordnance Survey map, which did not appear to show a verge to the north or west, but merely a highway running between physical boundary features.  It was submitted to me, by Mr Robert Moore of Counsel, who acted for the Coles, that the Coles were owners of everything which was conveyed under the 1872, 1877 and 1882 Indentures.  He submitted that it was therefore necessary to construe these early conveyances in order to ascertain how much land was comprised in the parcel now known as Spring Bank House.  Mr Richard Selwyn Sharpe, who appeared on behalf of Shropshire, agreed that this was the correct approach.

THE USQUE AD MEDIUM FILUM PRESUMPTION
6.	In construing the Indentures, Mr Moore relied on the so-called usque ad medium filum presumption, and referred me to the case of Micklethwait v Newlay Bridge Company (1886) 33 Ch D 133.  The rule was stated by Cotton LJ (at page 145) as follows
“In my opinion, the rule of construction is now well settled, that where there is a conveyance of land, even although it is described by reference to a plan, and by colour, and by quantity, if it is said to be bounded on one side either by a river or by a public thoroughfare, then on the true construction of the instrument half the bed of the river or half the road passes, unless there is enough in the circumstances or enough in the expressions of the instrument to shew that that is not the intention of the parties.  It is a presumption that not only the land described by metes and bounds, but also half the soil of the road or the bed of the river by which it is bounded, is intended to pass, but that presumption may be rebutted.  In my opinion, you may look at the surrounding circumstances, but only to see whether there were facts existing at the time of the conveyance and known to both parties, which shewed that it was the intention of the vendor to do something which made it necessary for him to retain the soil in the half of the road or the half of the bed of the river , which would otherwise pass to the purchaser….” 
Mr Moore accepted that that this is a rebuttable presumption, but submitted that there was no evidence available to rebut it, and there was nothing in the wording of the Indentures to do so.  Mr Sharpe, for the Council, accepted that there was such a presumption, and indeed cited another similar case in support of that proposition – Berridge v Ward 10 CB (NS) 400.   However, he sought to persuade me that, as a matter of construction, the presumption should not apply in relation to the Indentures which I have referred to.  However, there is nothing in the wording of any of these documents which, in my judgment, takes them out of the general presumption which I have referred to.  The parcels clause in the Micklethwait case is in all material respects identical in form to that used in the Indentures in this case.  Indeed, the area of the land was stated to be 7752 square yards in the parcels clause in the Micklethwait case, yet if the river bed was included the area would have been 10,031 square yards: nevertheless the presumption was held to apply.  Given the strength of the presumption, and in the absence of any extrinsic evidence as to the circumstances in 1872-1882, there is nothing to prevent the presumption from applying.  Accordingly, I am entirely satisfied that, as a matter of legal title, the Coles’ title extends to the mid-point of Candle Lane and Audlem Road where these adjoin their property.

ADVERSE POSSESSION
7.	As I have said, the Coles put their case on title in another way, namely by relying on the Limitation Act 1980.  Since I have held that their ownership extends to the mid-point of the highway be reason of the presumption usque ad medium filum, there is no need to consider this issue.  However, I would have rejected the claim.  In my judgment, the 	evidence did not establish that the Coles were in factual possession of the verge, within the meaning set out in JA Pye (Oxford) Ltd v Graham [2003] AC 419.  I shall expand on my findings in this regard below.  

PRESUMPTIONS REGARDING HIGHWAYS
8.	Clearly, as far as the highways themselves are concerned, the Coles will only own the sub-soil thereof.  The surface of the land subject to highway rights is vested in the highway authority in accordance with well settled law, and the Coles accept this.  There is no doubt, of course, that the carriageways themselves are subject to highway rights.  However, the real dispute in this case is whether the verges, or any part of the verges, are similarly subject to highway rights – or, put another way, whether the verges are part of the highway in addition to the carriageway itself.  In order to understand the nature of the dispute between the parties, I must refer at this point to some other presumptions of law.  The first, relied by on by Shropshire, has been called the “fence to fence” or “hedge to hedge” presumption and has been explained as follows: 
“It is clear that the mere fact that a road runs between fences, which of course includes hedges, does not per se give rise to any presumption.  It is necessary to decide the preliminary question whether those fences were put up by reference to the highway, that is, to separate the adjoining closes from the highway or for some other reason.  When that has been decided than a rebuttable presumption of law arises, supplying any lack of evidence of dedication of in fact, or inferred from user, that the public right of passage, and therefore the highway, extends to the whole space between the fences and is not confined to such part as may have been made up. 
It seems to me clear, however, as the principle has developed, that one is to decide that preliminary question in the sense that the fences do mark the limit of the highway unless there is something in the condition of the road or the circumstances to the contrary.” (per Goff J in Attorney-General v Beynon [1970] 1 Ch 1 at page 12).
 
9.	The Court of Appeal in Hale v Norfolk County Council [2001] Ch 717 was not prepared to accept (as Goff J seems to have done in the second paragraph quoted above) that there is in effect always a presumption that the highway will extend over the entire area between the fences or hedges unless contrary evidence is available.  It stressed that it must be a question of fact in each case whether it is right to infer an intention on the part of the landowner to fence against the highway and it must depend on all the circumstances in which the fence was erected.  However, Hale LJ had this to say (at paragraph 45):
“…..the presumption of dedication of all the land running between hedges or fences can only arise if there is reason to suppose that the hedge or fence was erected by reference to the highway: that is, to separate the land over which there was to be no public right of way from the land over there was to be such a right.  Where matters are lost in the mists of time, it must often be possible to draw such an inference from the layout on the ground.  In a conventional road running between hedges or fences, even if the verges are of varying widths and shapes, this may well be the obvious conclusion.  It is not surprising , therefore, that the cases regarded this as the prima facie position.  But that is not the same as elevating this preliminary factual question into a presumption of law.”
In the present case, however, there is indeed a complete lack of evidence as to the circumstances in which the hedge was erected, which may or may not have predated the Indenture of 1872.  The Tithe Map identifies a boundary feature on the north and west of Field 665, but not the nature of the feature, or whether the road came before the hedge or fence.  I asked whether the Act or other instrument creating the Audlem Turnpike contained any indication of the intended width but was told that it did not.  In the circumstances, I cannot see that there is any real alternative to adopting the approach of and Hale LJ as set out above (which in reality differs little from that of Goff J), namely that the existence of the hedges, without any additional information, leads to the inference that the hedges were created in order to separate the land from the road.  Accordingly, it follows that (subject to the issues referred to below) the entire verge from the carriageway up to the Coles’ hedge is dedicated to highway use.  

PRESUMPTIONS REGARDING THE DITCH
10.	However, as I have indicated, it is the Coles’ case that, prior to October 1985, the area between the edge of the carriageway and their hedge consisted largely of a ditch.  The significance of the ditch is two-fold.  First, there may be an application of the so-called “hedge and ditch” presumption, the existence of which was re-affirmed by the House of Lords in Alan Wibberley Building Ltd v Insley [1991] 1 WLR 894.  This presumption holds that where there is a boundary hedge and bank adjacent to a ditch, it is presumed that the owner of the hedge created it by digging the ditch and then throwing the spoil back onto his own land.  The result is that the actual boundary is not formed by the hedge, but by the top of the ditch farthest from the hedge.   In the present case, the Coles argue that the “hedge to hedge” presumption relating to highways does not operate to include the ditch within the highway.  The presumption only applies as far as the edge of the ditch nearest the carriageway.  Certainly, this submission is consistent with the A-G v Beynon case referred to above, where Goff J appears to have treated the “hedge to hedge” presumption as applying up to the roadward side of a ditch (at page 12 B-C).  If, therefore, the ditch is treated as part of the hedge, the ditch itself will not be included in the highway.  Secondly, there may be another presumption at work.  In Hanscombe v Bedfordshire CC [1938] Ch 944, Farwell J explained it as follows:
“When, therefore, the whole portion of a highway which is bounded by a fence or hedge is capable of being used to pass and re-pass, the whole portion is deemed to have been dedicated to the public.  When, however, a portion of the whole is a ditch which prima facie is not adapted for the exercise by the public of their right to pass and re-pass, the presumption, in my judgment, is that the ditch does not form part of the highway.  That is a presumption which may be rebutted (see Chorley v Nightingale) but the onus lies on those who assert that the ditch is part of the highway.”

11.	Indeed, Mr Sharpe (for Shropshire) referred me to the case of Chorley Corporation v Nightingale [1906] 2 KB 612 referred to in the Hanscombe case.  Here, it was held that there is no rule of law which prevents a ditch adjoining a highway from being regarded as being dedicated as part of the highway.  It is entirely a question of fact whether, in essence, the ditch was created in order to drain the highway or whether it was created for some other purpose.  If it can be proved that the ditch was dug for highway purposes, the presumption will be rebutted.  I must therefore make a finding of fact in relation to the purpose of the ditch. Again, the circumstances in which the original ditch was dug are shrouded in the mists of time.  Doing the best that I can with the evidence available to me, I conclude that the ditch was either constructed to drain the adjoining land to the south (including the Coles’ land) – which is higher than the verge on the highway – or that it was dug in order to create the hedge boundary feature which in fact bounds the Coles’ property, or that it was dug for a combination of both purposes.  My reasoning is as follows:
11.1	The only witness who could recall any “grips” linking the road with the ditch was Mr Woodcock, and his recollection was very vague.
11.2	It seems to be common ground that, to some extent at least, Mr Cole filled in the ditch in 1985.  According to the witnesses, the absence of the ditch does not appear to have made any difference to the condition of the road.  It is true that Candle Lane appears to flood from time to time, but this always seems to have been the case.  If the ditch were needed in order to drain the road, removing it would be likely to have a noticeable effect.
11.3	The topography of Candle Lane suggests that any ditch intended to drain the highway would be more likely to be on the opposite side of the road.  Audlem Road slopes down towards Candle Lane in a northerly direction, and the slope continues north of Candle Lane.  The land to the north of Candle Lane, known as Syllenhurst Moat, slopes steeply away from the road.  If it was thought desirable to channel the water flowing off the road, it would make more sense to place the ditch on the northern side of Candle Lane. It does not seem to me, therefore, that it is likely that the ditch on the opposite side of Candle Lane, on the Coles’ verge, was intended to drain the highway.  
In all the circumstances, therefore, I conclude that the ditch which currently exists and, until Mr Cole partially filled it in, existed to a somewhat greater extent, was not dug as part of the highway.  Alternatively, there is no evidence available to rebut the presumption, namely that the ditch is not subject to highway rights.

THE PRINCIPAL FACTUAL ISSUE
12.	This analysis of the law serves to isolate the principal factual issue in this case.  The issue is this: how wide was the ditch in 1985 when Mr Cole carried out works to it?  As I have said, the ditch was not then subject to highway rights and did not form part of the highway.  By filling in the ditch, and creating a verge, Mr Cole did not create any additional highway rights.  The highway rights will only extend as far as the northern (roadside) extent of the original ditch.  It is therefore crucial to establish, on the evidence, how wide the ditch was along the entirety of the frontage of the Coles’ property, before work was carried out which altered its width and appearance.  Once the width of the ditch has been established, as a matter of fact, the extent of the highway rights can be known.  This is because of the “hedge to hedge” – or, more accurately in this case, the “hedge to ditch” - presumption to which I have previously referred.  I shall therefore turn to the evidence with regard to the appearance of the land in 1985.  

THE EVIDENCE CONCERNING THE DITCH
13.	Mr Cole gave oral evidence, as did a Mr Frank Woodcock and a Mr Douglas Chilcott.  The Applicants also relied on a Witness Statement from Mrs Cole, who is no longer married to Mr Cole, and there was no objection to this.  Her statement simply confirmed her husband’s evidence.  The evidence from Mr Cole was to this effect.  He said that when he acquired the property there was a post and wire fence running along both Audlem Road and Candle Lane, which was positioned in the “very small space” between the ditch and carriageway.   According to Mr Cole’s Witness Statement, the ditch “was about two metres wide at the gate of Property and reduced to about one metre in width when it reached the corner of Candle Lane and Audlem Road.  It then widened again to about two metres when running along Audlem Road.  The Ditch also ran in front of Orchard Farm on Candle Lane, adjacent to our Property, where it increased in width to about 2.5 metres.”   This evidence as to the width of the ditch was the same as that given in his Statutory Declaration dated 14th January 2005. Mr Cole also gave some oral evidence in chief.  He modified his written evidence, in that he stated that the Ditch tapered to 0.5 metres at the corner of Candle Lane and Audlem Road, in the position of the existing telegraph pole.  He stated that the Ditch continued around the corner in to Audlem Road for about 20 metres, past the existing road sign marking the entrance to Woore.  He said that the post and wire fence only continued for about 5 metres round the corner into Audlem Road.  In his oral evidence, Mr Cole also confirmed that he filled in part of the ditch in October 1985 using some 8 to 10 tons of topsoil.  He said that he replaced the post and wire fence, with posts only on Audlem Road, and posts and stones on Candle Lane.  In cross-examination, Mr Cole elaborated on his earlier evidence.  In particular, he stated that the telegraph pole which I have referred to was at the front of the ditch which then existed.  The main part of the ditch, according to him, was behind the telegraph pole.

14.	Mr Douglas Chilcott, who had lived in Woore since 1982, gave evidence on Mr Cole’s behalf.  In his witness statement, he said this: “I have always recalled the frontage to Spring Bank House, Candle Lane, Woore consisting of a hedge with a ditch in front.  The ditch was wider in the early days and I noticed that it had reduced in size in or around 1985 after the Applicants had purchased the property.”  In cross-examination, he stated that the ditch did not extend for more than a few metres around the corner into Audlem Road, perhaps a maximum of five metres.  He could not recall the posts which existed between the carriageway and the ditch having any wire or rails attached – according to him they were some 2 to 3 metres apart.  He recalled that at some point rocks or stones were placed on the verge, but believed these had been removed after complaints had been made.  He said that the verge became something equivalent to a lawn in the latter years.  He also said that the ditch was about 18 inches deep and narrow, and ran in front of the telegraph pole situated on the corner of the two roads.

15.	The last piece of evidence given in support of Mr Cole’s claim was from a Mr Woodcock, a Parish Councillor.  In his Witness Statement, Mr Woodcock said this: “I recall the Ditch which, up until the mid 80s, ran adjacent to Candle Lane along the boundary of Spring Bank House and its neighbouring property, Orchard Farm.  I also recall the Ditch running along Audlem Road. …  During the latter part of 1985 I recall the Ditch being filled in to create a grassed verge.”  Mr Woodcock, in cross-examination, gave some further information.  He said that he could recall one or two “grips” joining the ditch to the carriageway.  He also said that the ditch did not extend more than ten metres round the corner from Candle Lane into Audlem Road.  He said that the road has not got any wetter since the ditch was filled in and he assumed that there was some drainage underneath the road.  That is the evidence relied upon by Mr Cole.

16.	The Council called a number of witnesses.  Of these, the only ones who could testify as to the appearance of the original ditch were Mr Hoy, and Mr Martin.  Mr Hoy has lived at Woodfield since 1973.  This house is almost directly opposite the junction between Candle Lane and Audlem Road, and has a good view of the verge. Mr Hoy’s Witness Statement dealt primarily with the appearance of the verge in recent years.  However, in the course of his cross-examination, he gave some additional evidence.  In particular, he stated that there was no verge to the road before Mr Cole created it in 1985.  The area between the carriageway and Mr Cole’s hedge was covered in soil and stones, and was very rough.  There was no “dug ditch” as such, although there was a depression immediately underneath the hedge.  He confirmed that notwithstanding that Mr Cole positioned posts on the edge of the carriageway on Candle Lane, vehicles would park on it, and in particular the Royal Mail van, whilst waiting to carry out the afternoon mail collection.  He said that there was a sufficient distance between the posts to allow smaller vehicles to park there.    It was put to Mr Hoy that Mr Cole had, some years ago, made a complaint to the Standards Board about his conduct in his capacity as Parish Councillor, with regard to an issue concerning the Village Green.  Mr Hoy accepted this, but firmly denied that he had any ill-feeling towards Mr Cole.  The complaint against him had been dismissed.   As it happens, the Standards Board Report was tendered in evidence by Mr Cole.  It may be noted that both Mr Chilcott and Mr Cole had complained about Mr Hoy, and Mr Woodcock had given evidence in support of the complaint.

17.	The other witness to give evidence on behalf of the Council was Mr Martin.  Like Mr Woodcock and Mr Hoy, Mr Martin is also a Parish Councillor, and a complaint was also made against him by Mr Cole.  Mr Martin, like Mr Hoy, denied that he bore any ill-will towards Mr Cole.  His evidence was as follows.  He said that the ditch in front of the Coles’ property had never been filled in as such.  The ditch had always been almost directly underneath their hedge, certainly on Candle Lane, and the present-day ditch is more or less the same width as it was prior to 1985.  There may have been some small narrowing, not to any great extent.  He said that the ditch was no more than 18 inches deep, and was more of a depression in the ground than a dug ditch.  There was no ditch at all on Audlem Road.  He accepted that the area in front of Orchard Cottage was somewhat wetter, but again there was no defined ditch.  He said that he was very familiar with the area, since he used to drive up and down Candle Lane many hundreds of times to take his children to school.  The ditch has always filled with water – indeed, there was water in the ditch when he had come past it on the morning that he gave his evidence.  He accepted that Mr Cole had put posts or bollards at the edge of the grass verge, but he did not consider that these posts had been dug in, more placed there.  He was clear that there was has never been any wire attached to the posts in 1985 or at any other time.  

18.	The other witnesses who gave evidence on behalf of the Council were not in a position to describe the land as far back as 1985, and for these purposes, therefore, that evidence does not assist me in reaching any conclusions as to the width of the ditch.  There is, however, a conflict of evidence between the “live” witnesses, which I must resolve.

CONCLUSIONS  REGARDING THE DITCH
19.	Before making findings about the evidence, I make the following observations.  The only witness who could be specific about the width of the ditch in 1985 was Mr Cole himself.  Neither Mr Chilcott nor Mr Woodcock were at all specific about the width, although both believed that the ditch was wider prior to the works carried out by Mr Cole.   However, they were both very clear that the ditch did not extend round the corner with Audlem Road for more than 5 to 10 metres.  I think that both these gentlemen were genuine in the evidence that they gave, but they cannot really assist in determining the width of the ditch, save in the general sense that they believed that the ditch used to be wider.  Mr Hoy’s evidence was that there was no “dug ditch” as such: there was merely an area of land, consisting of soil and stones, which sloped back towards Mr Cole’s hedge.  Mr Martin gave evidence to this effect.  He said that there has always been a ditch immediately underneath the hedge fronting on to Candle Lane: he did not recall any ditch on Audlem Road itself.  However, he does not recall the ditch being materially wider, before Mr Cole carried out his improvements.  According to him, the ditch has never been of the width contended for by Mr Cole, but has always been a relatively narrow depression in the ground immediately beneath the hedge.  It seems to me that Mr Hoy’s and Mr Martin’s recollection of the pre-1985 ditch was considerably more precise than that of Mr Chilcott and Mr Woodcock.  It is true that they had both previously been involved in some dispute with Mr Cole, in their capacity as Parish Councillors.  As I have said, complaints were made by Mr Cole against both of them.  However, they both denied that they held any animus towards Mr Cole.  I believe them.  Their performance under cross-examination, and their general demeanour, did not suggest to me that they were anything but fair and truthful witnesses, who had a clear recollection of the former appearance of the ditch, and bore no malice towards Mr Cole.

20.	However, there is clearly a conflict of evidence between Mr Cole on the one hand, and Mr Hoy and Mr Martin on the other.  I think the conflict may be resolved in this way.  There is no doubt that, before Mr Cole carried out his improvements, the verge on Candle Lane was little more than soil and rubble.  I am satisfied that Mr Cole did indeed tip large quantities of top soil on to it, with a view to improving its appearance by creating a grass verge.  However, I am not satisfied that, prior to this work, there was a substantial ditch as Mr Cole has stated.  There is clearly a narrow and fairly shallow ditch immediately underneath the hedge, running along Candle Lane at least as far as the telegraph pole.  The existing ditch is approximately half a metre or so in width.  It seems to me, on the balance of probabilities, that there was no substantial formed ditch as Mr Cole has stated prior to the carrying out of this works.  There may have been some minor filling in, but essentially the area covered by the top soil was rough ground, in which water may have collected from time to time.  I conclude that the original ditch may have been a little wider than it is at present, perhaps one metre in total, save at the telegraph pole, where it would have been narrower.  I think Mr Cole must be right, and at this point the ditch ran behind the pole.  I also find that the ditch ran for no more than five metres round the corner into Audlem Road.

21.	My reasoning is as follows. One way of testing Mr Cole’s evidence is to consider the drainage situation as it now exists.  If indeed there had been a substantial ditch along Candle Lane from 2.5 metres wide in front of Orchard Cottage and some 2 metres wide at the entrance to Spring Bank House, it seems quite extraordinary that there has been no change to the drainage to the area notwithstanding that the ditch has been substantially reduced.  The purpose of a ditch is to drain water.  All the witnesses accepted that Mr Cole’s creation of the grass verge had made no difference to the drainage either of Candle Lane, or of the land above it.  That strongly suggests to me that the ditch referred to by Mr Cole was more or less the same depth and width as the ditch which currently exists.  The current ditch is effective to drain the area and it seems most unlikely that this would be the case if the ditch had previously been some three times wider.  There is no purpose in creating and maintaining a substantial ditch if it is not required.  Even if the original ditch was dug as part of the planting of the hedge, that is likely to have happened well over a hundred years ago.  Furthermore, it seems to me very unlikely that there could have been a ditch at all in the area now occupied by the telegraph pole.  The distance between the hedge and the carriageway at this point is too narrow, in my view, for there to have been a ditch as well as the pole.  I note that in Mr Cole’s Witness Statement (and Statutory Declaration) he says that the ditch “reduced to about one metre in width when it reached the corner of Candle Lane and Audlem Road.”  Both the statement and the Statutory Declaration purport to give quite precise dimensions for the original ditch.  It seems to me that it would have been physically impossible for there to have been a one metre wide ditch at the corner, in view of the proximity of the carriageway to the hedge.  Indeed, when Mr Cole was examined in chief, he said that the ditch was only half a metre wide at the “pinch point” at the telegraph pole.  This discrepancy in his written and oral evidence was unexplained.  Even this dimension would, in my view, have been most unlikely.   Additionally, neither of Mr Cole’s witnesses could support his evidence to the effect that the ditch continued into Audlem Road for a distance of some 20 metres.  Their evidence ranged from a few metres to ten metres at the most.  Similarly, neither of his witnesses recalled there being any wire attached to the posts which had been placed in the ground before the verge was created.  I am afraid these factors suggest to me that Mr Cole was inclined to exaggerate his evidence to suit his case.  This may well have been unconscious on his part, but I cannot ignore it.  Accordingly, if and to the extent that my findings are in any way inconsistent with Mr Cole’s evidence, it is because I prefer the evidence of Mr Hoy and Mr Martin to that of Mr Cole in relation to the ditch.

SUMMARY OF CONCLUSIONS REGARDING THE DITCH
22.	In view of these findings, it follows that the highway extends over the verge for its entire length and width, save for a strip one metre wide beyond the Coles’ hedge along Candle Lane as far as the telegraph pole, and on the other side of the telegraph pole as far as Audlem Road and for an additional length of five metres along that road.  However, there are two additional matters which I must consider.  First, I ought to deal with the claim to adverse possession, and the evidence adduced in support.  Secondly, I must consider certain correspondence relied on by Mr Cole, with Shropshire, which, it was suggested, might have bound Shropshire to accept that the verge was free of highway rights.  I shall consider these issues in turn,

ADVERSE POSSESSION
23.	The Coles’ evidence in support of the adverse possession claim amounted to this.  They had tipped topsoil onto the area between their hedge and the carriageway: they had grassed the area and tended the grass by cutting and so forth: and they had placed posts in the ground at regular intervals.  These acts had taken place since 1985.  According to Mr Cole, he never saw anyone walking on the verge, and if he had he would have told them to get off it.  He said he regarded the verge as being within his ownership, having been told this, according to him, by his solicitor in 1985.  Even if all this evidence is accepted as face value, I do not consider that it would begin to satisfy the test of “factual possession” as laid out in J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419 at 436:
“Factual possession signifies an appropriate degree of physical control.  It must be single and [exclusive] possession, though there can be a single possession exercised by or on behalf of several person jointly.  Thus an owner of land and a person intruding on that land without his consent cannot both be in possession of that land at the same time.  The question whether acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used and enjoyed…Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor has been dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so.”

24.	In my judgment, Mr Cole’s activities fall short of the necessary degree of physical control referred to in the passage quoted above.  Furthermore, the desire of a landowner to improve the appearance of his property and its frontage by turning an ugly area of rough ground into a neat grass verge does not necessarily suggest the act of an “occupying owner”.   Posts were erected along the edge of the carriageway, but these are more consistent with keeping parked vehicles off the verge than delineating a boundary.  One frequently sees a verge completely separated from the road by posts and chains running between the posts, which more strongly suggests ownership of the verge.  That was not the case with this verge, however.  All in all, I would not have considered these activities sufficient to establish a title by adverse possession, had I reached a different conclusion with regard to the “paper” title.  Furthermore, the concept of adverse possession does not assist the Coles insofar as the sub-soil of the verge is owned by them.  Highway rights cannot, it seems to me, be defeated by adverse possession.  

ALLEGED AGREEMENT WITH SHROPSHIRE COUNTY COUNCIL
25.	There was correspondence between the Coles and the Highways Department of Shropshire County Council in 1992.  This followed on from a meeting between the Coles and a Mr Haddock, the Divisional Surveyor.  Mr Haddock had inspected Audlem Road and had noted that “the County Council has allowed the road to become unnecessarily narrow along part of the length of your boundary by not removing silt and other material that has accumulated over many years.  Some of the available width needs to be restored for vehicles in the interests of public safety.” (see his letter dated 19th February 1992).  It was agreed that the Coles’ hedge would be cut back by between 150mm and 300mm along its entire length.  On 10th March 1992 Mr Haddock wrote again stating that “..you are requested to trim the hedge at your earliest convenience and in successive years endeavour to return for use as much of the highway verge and carriageway as possible by progressive cutting without damage to the hedge or loss of protection.”   That letter is annotated with manuscript writing, which appears to be Mr Cole’s reply dated 17th March 1992.  The material part reads “Thanks – as per telecon, we will keep the hedge trimmed up to the new white edgeline around the bends which we agreed will form the definitive position and extent of the hedge growth.”

26.	Mr Cole contended that this amounted to a binding agreement that the legal boundary between the highway and the Coles’ land would be delineated by the new white edgeline, or at least it was evidence that Shropshire regarded this as the boundary in 1992.  Mr Sharpe submitted that there was no pleading of a boundary agreement in the Statement of Case, and the issue had never been formally put forward as a boundary agreement.  This is undoubtedly true, and no application was made to amend the Applicants’ case based on a boundary agreement.  In any event, I do not consider that any such agreement can be established on the facts.  The correspondence with and from Mr Haddock was written in the context of the District Surveyor’s concerns that the Coles’ hedge was too large, and would have to be progressively cut back in order “to return for use as much of the highway verge and carriageway as possible..”.  While it seems that Mr Haddock was prepared to allow the Coles to maintain their hedge, even though it was interfering with the highway verge and carriageway, I cannot read this correspondence as intended to make any definitive agreement as to the legal boundaries.  Mr Cole’s reply of 17th February merely refers to the agreed extent of the “hedge growth” – the word boundary is never used.  This is simply a pragmatic resolution of a potential problem regarding Mr Cole’s hedge.  In any event, I very much doubt whether Mr Haddock could have had actual or even ostensible authority to have made a boundary agreement on behalf of Shropshire.

CONCLUSION
27.	In the light of the findings I have made, I shall direct the Chief Land Registrar to give effect to the Coles’ application, but with certain modifications to reflect the findings of this Decision.  In particular, although the Coles are entitled to be registered as proprietors of the sub-soil of the verge (save for the one-metre strip beyond their hedge, as to which they are entitled to be registered as proprietors of the surface), there must be noted on the register the fact that there are public highway rights over the verge (save for the one-metre strip) for the reasons given above.  I therefore direct the parties to attempt to agree between themselves, and with the Land Registry, a suitable form of words to be entered on the register so as to give effect to the Decision.  If it is not possible for such a form of words to be agreed, the matter will have to be returned to me and I shall make an Order as best I can.  

Dated this 21st day of May 2007

By Order of The Adjudicator to HM Land Registry