PROPERTY IN HEDGE AND DITCH. 1:31 



talven away, then all the residue were marked, and the length and 

 girth of each tree were taken ; but the total cubic contents of them 

 was not ascertained. When Jenkins became a bankrupt the plaintiff 

 prevented his servants from drawing any more trees, and Jenkins 

 acquiesced. Some time after the plaintiif drew the residue of the 

 trees, which were lying where they had been felled, to his own saw- 

 pits, from which the defendant, after notice not to do so, took away 

 two loads. It W'as held by the Court of Common Pleas, on an action 

 of trespass, that as nothing remained to be done but the adding 

 together of the different measurements, the property passed to the 

 vendee, and that the defendant, as the vendee's assignee, was entitled 

 to the possession of the trees, they having been fully delivered by the 

 vendor, and the vendee not having any right to relinquish the contract, 

 as he was at the time in a state of insolvency. 



Where two adjacent fields are separated ly a hedge and ditch, the 

 liadigQ primd facie belongs to the owner of the field in which the ditch 

 is not. If there are two ditches, one on each side of the hedge, the 

 ownership of the hedge must be proved by showing acts of ownership. 

 Per Bayley J. in Guy v. West (Som. Ass. 1808). His lordship thus 

 referred to the subject in Noye v. P\.eed, where the landlord said that 

 he had let the lane jointly to both plaintiff and defendant, as much to 

 one as the other: "I admit that where there are separate owners of 

 adjacent lands, the presumption is that a ditch between those lands 

 belongs to the owner of the hedge ; but this is the rule of presumption 

 only, and applies only in cases of separate ownership ; and therefore 

 where the lands on each side are the property of the same landlord, as 

 he may let them as he thinks fit, and confine the rights of his tenants, 

 the onus of making out that the spot in question was his, was here 

 cast upon the plaintiff. He proved his possession of the close up to 

 the hedge of the lane, but he proved nothing more." 



This case decided that where adjacent lands l)elong to two distinct 

 owners, the legal presumption is that the ditch which divides them is a 

 part of the soil of him to whom the hedge belongs ; and where a road 

 was between those lands, the owner on each side has a right of use ad 

 medium fikan vice. But semhte, that such presumption will not arise 

 where the entire property of such lands is in one landlord, who has let 

 them out to different tenants ; but that it will be incumbent upon 

 either tenant who shall bring trespass against the other to prove his 

 right of exclusive possession of the ditch, or the half of the road next 

 to his close, in order to sustain the action (ih.). 



According to Ellis v. Arnison, a ditch which had been immemorially 

 the only fence between the commons and adjoining townships, was con- 



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