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F E Smith
F E Smith, Advocate
Category: Law
Satisfied Customers: 9683
Experience:  I have been practising for 30 years.
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We have a stream running through our land, part of which backs

Resolved Question:

We have a stream running through our land, part of which backs on to properties. the stream will now be filled in to create a flood bund and another stream realigned across our land. each house has their boundaries at the end of their gardens and we are trying to claim that the refilled land will belong to ourselves, it is causing a hold up to flood defence work. please advise on what we can do.
Submitted: 1 year ago.
Category: Law
Expert:  F E Smith replied 1 year ago.
How much is the mortgage outstanding and what is the value of the property?How long have you had the mortgage for? Did they give you notice that it was coming to an end?It is a condition of all these mortgages that the borrower arranges a repayment vehicle. Why was this never done?What do you want the lender to do?
Customer: replied 1 year ago.
What has this got to do with my query
Expert:  F E Smith replied 1 year ago.
I apologise. For some reason, the cut-and-paste facility did not pick up the response to you and you got an old one. This is what you should have had :In the absence of any other boundary feature, if the stream was previously the boundary, the extent of your land is the centre of the stream. The stream is filled in, would be the centre of the filled in area.Can you please explain the layout a little more please because it is not clear and it is not clear exactly what the problem is? What would you like to know about this?
Customer: replied 1 year ago.
would that be a further charge to the £47
Expert:  F E Smith replied 1 year ago.
Not at all. You just pay one fee for the whole of the exchange however many exchanges there are. Best wishes.
Customer: replied 1 year ago.
The best way for me to explain is for me to ask you to imagine a large rectangle, on the left hand side and the line in front of you is the existing stream. the flood defence works are to fill in this stream and realign a new one from the left hand top corner across the field, almost running parallel to the top straight line. one the left hand side there is a wooden foot bridge across the stream to a 25 metre footpath onto the road, we own this footpath. the left hand side is also lined with old cottages on its far side, these all have boundaries that go down to the stream with a wall at the bottom of their gardens. This is an ancient man-made stream. We are trying to ascertain the ownership, bearing in mind that we own the footpath . We will have to give up part of our existing field to construct the new stream and the old one will be filled in. Our fear is that the neighbours will be able to encroach onto the filled in stream. and what if anything we can do to prevent this. We have made a statement of truth to the solicitors that it is on our land, we have kept it clear from debris and maintained it for me than 20 years. this will be sent to the land registry but will take at least 6 months to complete. in the meantime we may loose the funding from the EA for the flood defence work due to delays. We ideally would like to make sure somehow that the works can proceed asap.
Expert:  F E Smith replied 1 year ago.
Is your concern that because the owners of the cottages will now be on the other side of the stream they will start to encroach on your land which will now be on the other side of the stream?Have you made an application for adverse possession of this land? Is it registered or unregistered? Is it the stream you are trying to ascertain the ownership of or some of the land?I need to know exactly what the extent of your land is at present what the extent of the land is that you are looking to claim.
Customer: replied 1 year ago.
it is an unregistered stream, although we always understood as it was part of our land as it also passes in front of us, to the left side and to the right. what is adverse possesion ?
Our property stands in 4 acres, the stream being in the paddock facing our home. the stream is approximately 5 metres wide. No one disputes the stream running across our land, it is only the part that flows to the left, alongside which are the cottages. as i said their land registry border is at the bottom of there gardens which backs onto the stream, although there is a wall at the bottom of each cottage .
Expert:  F E Smith replied 1 year ago.
Thank you. You have to look at the situation as it is on the ground before the ditch is filled in. There is a convention with regard to ditches. Where two fields are separated by an artificial ditch alongside a bank which may or may not ever hedge your offence and it, there is a production that the boundary is along the edge of the ditch furthest from the hedge or fence. This arises from the assumption that the landowner digs is drainage ditch on the extreme edge of his property and throws up the earth onto his own side of the ditch to avoid committing a practice plus against his neighbour. Thus, it forms the bank on which the plants the hedge or puts offence up. Hence, if there is a raised bank or mound along the stream/ditch the boundary is on the opposite side of the ditch because that bank or mound is on your property. With a normal river or stream which is not man-made (natural or man-made is really important) the boundary runs down the centre. If there is no hedge or mound, there is no presumption and it would be down the centre. If you want me to quote the case law the case is an old one, Marshall v Taylor from 1895.If however the land registry plan shows their boundary as being on one side of the stream, that is quite persuasive evidence that their property extends no further than the stream.Can I clarify anything for you?
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