OPINION

Alexander James Burr and Another v The Keeper of the Registers of Scotland and Carl Anderson

Introduction and Summary

[1] In this appeal under Section 25 of the Land Registration (Scotland) Act 1979 (“the Act”), the appellants complain against the Keeper’s failure to rectify two registered titles, his own and that of his immediate neighbour, the interested party (“Mr Anderson”). The subjects of appeal comprise a narrow rectangular strip (“the appeal strip”) at the boundary between the two properties. The appellants’ property is agricultural land. Mr Anderson’s property is a house and garden adjoining, at the disputed area, a field in which the appellants’ tenant grazes cattle. The appellants’ title was registered first but did not include the appeal strip; Mr Anderson’s was registered later and did. The appellants and the Keeper in fact agree that the appellants are the “true owners” of the appeal strip and therefore that there is inaccuracy in the register. The Keeper decided that he was unable to proceed to rectify under Section 9 of the Act because Mr Anderson claimed to be a “proprietor in possession”. Mr Anderson, however, claims both to be the “true owner” of part of the appeal strip and also to have been the proprietor in possession of this part which he claims is correctly included in his title. The present hearing was arranged to consider only the issue whether Mr Anderson was a proprietor in possession, leaving the issue of inaccuracy still to be considered if necessary. Mr Anderson was clearly the “proprietor” of the disputed area, because it was included in his registered title. Accordingly the issue at this hearing was whether he was “in possession” within the meaning of the Act at the relevant time. He in fact only claimed to be in possession of that part of the appeal strip which he considers to be correctly within his title.

[2] Section 9(1) of the Act authorises the Keeper to “rectify any inaccuracy in the register by inserting, amending or cancelling anything therein”, but Section 9(3) provides that “if rectification under subsection (1) above would prejudice a proprietor in possession”, this power may only be exercised in certain specified circumstances.

[3] Our decision on this issue is that the appellants, who accepted the onus, have satisfied us on a balance of probabilities that Mr Anderson was not “in possession” of any part of the appeal strip at the relevant date. There was substantial dispute on the facts, on which we find in the appellants’ favour. Put shortly, on the evidence, we consider that until the formal dispute and the issue of rectification arose the fence was in the position claimed by the appellants and there was no fence in the position claimed by Mr Anderson in his evidence, so that the appeal strip was within the appellants’ field and used and possessed as such and was not possessed by Mr Anderson. There is no doubt that Mr Anderson, considering himself to be the true owner as well as the registered proprietor, subsequently annexed the disputed area and started to use it or some of it in effect as part of his garden, but in our view, on the evidence and when the issue is properly considered, he was not at the relevant time “in possession” under Section 9(3) of the Act of any part of the appeal strip. The application will, following our decision on this issue, be continued to enable the issue of inaccuracy to be disposed of.

The Titles

[4] The appellants’ title is based on a Disposition by William John Rose in their favour dated 25 February 2003. The subjects were:-

“that area of ground in the Parish of Rayne and County of Aberdeen extending to 5.841 Hectares or thereby shown delineated and coloured pink on the plan annexed and executed as relative hereto”.

The plan bears to show the boundaries accurately measured. The application for first registration of this title was received by the Keeper on 7 May 2003, which is the date of registration of the appellants’ title under Title Number ABN65184.

[5] Mr Anderson’s title is based on a Disposition by Jeannie Tocher Rose and William John Rose’s Executors in his favour dated 24 and 30 December 2003, Mr Rose having died in the intervening period. The subjects were (First) an area of 1,154.7 square metres, together with the dwellinghouse, Hunthall, Old Rayne, as described and shown on a plan, and (Secondly):-

“that area or piece of ground at Hunthall, Old Rayne, Aberdeenshire, in the said Parish and County bounded on or towards the southwest by the public road leading to Thorpville along which it extends three metres or thereby, on or towards the northwest, northeast and east by the subjects now belonging to Alexander James Burr and Mrs Shirley Jean Burr along which it extends thirty two metres and forty seven centimetres or thereby, eight metres eight centimetres or thereby and forty two metres nine centimetres or thereby respectively and generally on or towards the north and west of the subjects (First) hereinbefore disponed … ”

The application for first registration of this title was received by the Keeper on 26 January 2004, which is the date of registration of Mr Anderson’s title under Title Number ABN70672. (We have incidentally noticed, for any significance which this might have, that while the above boundary measurements narrated in the disposition in Mr Anderson’s favour bear a superficial resemblance to the corresponding measurements shown on the plan appended to the disposition in the appellants’ favour, the last two measurements do not in fact correspond exactly).

[6] As background to the issue of possession considered at this hearing, and on the basis of the material presently before the Tribunal, the dispute about the titles can apparently be summarized briefly as follows. The late Mr Rose had originally owned both properties. His sister Jeannie Rose lived in Hunthall. The subjects disponed (First) in Mr Anderson’s title had previously been disponed to Jeannie Rose. When the appellants were purchasing their property from Mr Rose, it was indicated that a rectangular strip of ground to the north of Hunthall and a triangular shaped piece of ground to the east of Hunthall, although not then included in Jeannie Rose’s title, were not to be included in the sale to the appellants. These two areas became the subjects (Second) in the subsequent disposition of Hunthall in favour of Mr Anderson. The appellants and the Keeper apparently maintain that a further rectangular strip, some 2 metres wide, beside and to the east of the triangular shaped piece of ground, was part of the subjects which had been conveyed to the appellants but, in the registration process, was erroneously omitted from the appellants’ title and then erroneously included in Mr Anderson’s title. Mr Anderson apparently relies on a plan appended to a “P16” Report issued by the Keeper’s office, together with measurements based on the plan appended to the disposition in favour of the appellants, for his claim that on a correct interpretation of the two titles, at least part of the appeal strip had not been conveyed to the appellants. To the contrary, it is claimed, this part was specifically included, under reference to the P16 report, in the missives of sale to him. He apparently further claims that this part can be seen, on the basis of the measurements on the plan appended to the disposition in favour of the appellants, not to have been disponed to them and to have been included in the disposition to him. He accordingly claims to be the true owner of that part of the appeal strip. We express no view in this Opinion on this dispute as to whether or not the register accurately reflects the extent of the parties’ titles.

Procedure

[7] The appellants applied on 15 February 2007 for rectification of the Land Register so as to include the appeal strip in their registered title (which would also involve removing it from the interested party’s title.) There being disagreement between the appellants and Mr Anderson as to whether he was in possession of the appeal strip, the Keeper, although agreeing that there was ‘inaccuracy’, declined to proceed to rectify. The appellants’ appeal is against that decision.

[8] At the hearing on the issue whether Mr Anderson was a “proprietor in possession” within the meaning of the Act, the appellants were represented by Mr Strachan, advocate, who called the appellant Alexander Burr and George Will, a farmer who has held grazing leases of the appellants’ field since 2004, to give oral evidence. The Keeper was not present or represented. Mr Anderson was represented by Mr Spence, solicitor, of Messrs Peterkins, Aberdeen, who called Mr Anderson, his father Derek Anderson, and his partner Shona Milne, to give oral evidence. Both parties also lodged documentary productions. The Keeper had also lodged productions, including a helpful blown up version of the title plans locating the appeal strip. The Tribunal did not visit the site, at which there had evidently been physical changes since the period in question.

Authorities referred to:-

Kaur v Singh 1998 SC 233, 1999 SC 180
Safeway Stores plc v Tesco Stores Ltd 2004 SC 29 (and as Tesco Stores Ltd v Keeper of the Registers of Scotland 2001 SLT (Lands Tr) 23)
Yaxley v Morrison 2007 SLT 756
McCoach v Keeper of the Registers of Scotland, 19.12.2008, LTS/LR/2006/03

The Facts

[9] On the basis of the oral and documentary evidence and submissions, the Tribunal found the following facts established.

[10] The appellants purchased their property, being 5.841 Hectares of agricultural land of which they had been tenants since 1996, from Mr Rose early in 2003. The plan appended to the disposition in their favour had been prepared by an architect who was instructed to take detailed measurements and prepare an accurate plan. The house, Hunthall, lies generally to the west of the appellants’ land, between it and a public road, although a finger of the appellants’ land extends further west so that Hunthall, which has an irregular shape, adjoins the appellants’ land to the northwest as well as on, generally, the east. The plan showed three measured lines of boundary between the two properties: firstly, to the northwest of Hunthall, 32470, i.e. 32.47 metres; then to its northeast, 8800, i.e. 8.8. metres (not 8.08, the figure narrated in the interested party’s disposition); then approximately east (the disputed boundary), 42900, i.e. 42.9 metres (not 42.09). The plan also showed a ‘Post & wire fence’ at the 42.9 metre boundary line. On the ground, part of the 8.8 metre boundary line either coincides with or is close to the west side of the floor and foundations of an old store, now demolished, on the agricultural land. There is a fence strainer post adjacent to the southwest corner of the old store. There is another fence strainer post at the south end of the 42.9 metre boundary line.

[11] The appeal strip is a narrow rectangular strip, some 2 metres wide, whose west side runs in a straight line between these two strainer posts.

[12] At the time when the appellants purchased their property, and for some time thereafter, a post and wire fence ran between these two strainer posts, to the west of the appeal strip. On the Hunthall, west, side of the line of this fence, separated from it by a short distance of up to a metre, a wall runs for around one-third of the distance towards the corner of the old store. Further along the line of the fence, running towards the corner of the old store, there were a number of trees, some now removed with only the stumps remaining. The fence was in places fixed to the trunks of these trees or some of them.

[13] Mr Will has had annual grazing leases of the field adjoining Hunthall since 2004. He initially used the whole of the field, up to the fence referred to above. There was at that time no other fence separating the field from the grounds of Hunthall to the west. Some time after Mr Anderson acquired and took possession of Hunthall in December 2003, difficulty arose because it was perceived that Mr Will’s cattle were damaging branches of the trees to which the fence was fixed. Mr Burr put up a ‘guard’ fence with single wire, set back from the trees.

[14] When the appellants lodged a planning application for some houses close to this location, including in the area of the old shed, in 2004, Mr Anderson considered that the garden of one of the houses encroached on the area which he claimed belonged to him.

[15] On 25 May 2006 Mr Anderson’s solicitors wrote to the appellants. They enclosed a copy of his Land Certificate title plan and referred to disagreements. They indicated that he proposed to instruct a surveyor to mark out the boundary as shown in his title. The letter continued:-

“The farmer currently using the land adjacent to our client’s property continually runs his tractor and allows cattle to run over the ground belonging to our client resulting in damage to our client’s property … Following the erection of our client’s boundary fence our client would ask that the farmer or yourself erect suitable fencing to contain the cattle within your land and to prevent any damage to our client’s fence.”

This letter further stated that the appellants or their surveyor could be involved in the marking out of the boundary:

“a suitably qualified surveyor will provide the best means possible to establishing a common boundary between your property and his … our client simply wishes to mark out the area which belongs to him in order to establish a common boundary between the properties and to avoid any possible dispute.”

[16] In June 2006 Mr Anderson and his surveyor, in the presence of a representative of the appellants, marked out their understanding of the correct boundary, in effect adding a triangular area (part of the appeal strip) whose short side extended a short distance along the south east side of the old shed foundation at the north end and whose south end was the same fence strainer at the south end of the original fence. On 22 June 2006, Mr Anderson’s solicitors wrote:-

“We confirm that our client and his surveyor have marked out the boundary on the ground in terms of the plan on his Land Certificate. We understand that a representative of your clients was in attendance but we would be grateful if you would confirm that your clients are satisfied with the boundary as marked in order that our client may erect a boundary fence.”

[17] Thereafter, parties were in dispute. A period ensued during which Mr Anderson put up posts marking this claimed boundary, the appellants removed them and so on.

[18] The parties’ solicitors exchanged correspondence in October 2006 when the Mr Anderson’s solicitors explained his claim in more detail and the appellants’ solicitors responded that the Keeper must have made an error which required to be resolved and that they had taken the matter up with the Keeper. On 13 April 2007, after the appellants had made the application for rectification, Mr Anderson’s solicitors wrote to the Keeper:-

“We are informed by our client that:

1. He has placed posts and fencing along the line of the boundaries as shown on the Title Plan. These have been removed and damaged by the neighbouring proprietor from time to time. Our client continues to replace the posts and fencing when this has happened.

2. During the course of his ownership of the Property he has possessed and maintained the extent as shown on the Title Plan.”

[19] Some 10 metres of the original fence was removed in around 2007, following which Mr Will required to erect an emergency fence to prevent the cattle from escaping. Eventually, Mr Will and his son erected a secure fence which at its north end was several metres to the east of the disputed area, i.e. further into the field. The line of this fence was dictated by the existence of two strainer posts, viz. the strainer post already referred to at the south end, a metre or so from the wall, and another existing strainer several metres to the east at the north end. The original fence was completely removed. Since then, Mr Anderson has had exclusive access to the disputed area, which was no longer fenced off from Hunthall. His family, particularly young children, have used the area for playing. Disputes between the parties have continued.

[20] Mr Anderson also from an early stage of his possession used the area immediately over the wall towards the south end for grass and other garden cuttings.

Submissions

[21] Although the appellants’ case was built on the claim that they were the true owners in possession of the area in dispute, Mr Strachan advanced a number of arguments pertinent to the question whether the interested party, as “proprietor”, was in possession. He submitted that possession for the purposes of Section 9(3) was possession of the subjects rather than of a legal interest in the subjects. Some significant element of physical control was required. Erecting barriers, to which objection was immediately taken, did not go to establishing possession. Reference was made to Yaxley v Morrison; Kaur v Singh; Safeway v Tesco; and McCoach v The Keeper. The actings of the appellants over the relevant period were relevant. It was accepted that the onus of proof was on the appellants. Mr Strachan pointed to evidence of the maintenance of fences by the appellants prior to January 2004, when the interested party took possession of his property, and to the evidence about the fence running along the trees and the cattle grazing over the disputed area up to the trees. Mr Anderson’s evidence about cattle jumping or getting through the fence should not be accepted. The evidence did not establish how long Mr Anderson had been cutting grass or letting children play in the disputed area. There was ample evidence of the fence in the position claimed by the appellants, showing physical control by them and not the interested party.

[22] For the interested party, Mr Spence accepted that there was a triangular area running from the southmost boundary over which Mr Anderson had not claimed to have possession. He agreed that the issue was possession of the land and not of the right, and that some animus and some element of physical control were required. He accepted that actings in relation to a planning application, and actings subsequent to the application for rectification, did not assist. As a matter of fact and degree, the appellants had on balance not discharged the onus of establishing that Mr Anderson was not in possession of the disputed area. The evidence as to fencing was confusing. Mr Carl Anderson’s evidence of the position of a fence to the east was supported by Mr Derek Anderson. Mr Anderson had given evidence of putting up fences, and putting up posts prior to the attendance of the surveyor. There were other indicators pointing to possession, which could be through others. Mr Anderson had cut grass, and there was evidence supported by his witnesses of allowing children to play in the disputed area, including at the relevant time. The farmer’s actions did not negate these actings. Mr Spence accepted that the interested party was in some difficulty if his neighbours had cattle there and he did nothing, but pointed to Mr Anderson’s actings. Mr Derek Anderson had not been clear about timings in relation to the cattle damaging the fence at the trees. The similarity between Mr Burr’s and Mr Will’s evidence indicated something more than coincidence, but there was inconsistency between them about the exchange between Mr Derek Anderson and the farmer. Mr Burr had claimed no knowledge of the existence of a water pipe in the area.

Tribunal’s Consideration

[23] We should first note that the issue of possession which we have had to consider at this hearing only relates to part of the appeal strip. Mr Anderson acknowledged that he was only claiming to be the ‘true owner’, and to have been in possession of, the triangular part which, according to him, is shown on the P16 Report and his title plan and, properly measured, was not part of the land conveyed to the appellants. We need not therefore be concerned with the remaining part, an even smaller triangle, of the appeal strip: the appellants appear to be entitled without further enquiry to rectification in relation to that part.

[24] As far as the issue of possession for the purposes of Section 9 of the Act is concerned, some basic legal propositions are clear. Firstly, contrary to the approach which the appellants brought to the hearing, the question is not whether they were in possession, but whether Mr Anderson, who was clearly the “proprietor” for the purposes of Section 9, was in possession. That said, in a case such as the present, involving a disputed boundary, the enquiry will very likely, and does in this case, involve consideration of possessory acts by both parties. Secondly, possession for these purposes is actual possession of the subjects and not simply possession of a legal interest in the subjects. Thirdly, the possession requires to be with the appropriate intention, i.e. the intention to possess as owner, but we are in no doubt that that requirement would be satisfied in this case if Mr Anderson had the requisite degree of physical control.

[25] The approach was authoritatively summarized by Lord Hamilton in Safeway Stores plc v Tesco Stores Ltd, at Para 77, as follows:-

“In my view the term ‘in possession’ in this statutory context imports some significant element of physical control, combined with the relevant intent; it suggests actual use or enjoyment, to a more than minimal extent, of the subjects in question as one’s own. It is a ‘proprietor’ who has, on the faith of the register, had such enjoyment or use who is protected against rectification. A ‘proprietor’ who has not had such enjoyment or use is not so protected and may require to seek his remedy, if any, in the form of indemnity. Where the issue of possession relates only to part of registered subjects, the matter for determination will be whether the proprietor is in possession of that part, either directly itself or as an integral element of the registered subjects viewed as a whole. The existence of physical features on the ground, including natural physical boundaries, and the activities of the ‘proprietor’ within or beyond such features may be material to what inference may properly be drawn as to the extent of his possession.”

[26] The physical context of different cases may of course vary enormously. For example, the disputed strip in Safeway was in the middle of a river. It is a question of facts and circumstances in each case. In some cases, possession of a whole area may justify an inference of possession of a disputed part which can be seen as integral to the whole. In the present case, parties’ concentration on the actual area of dispute appears appropriate. It has appeared to us that the position of the fence – there really must have been a fence, as the field was used for grazing cattle and sometimes sheep – is central to the issue. Mr Anderson did not claim to have established possession on the other side of a fence, and if the fence was where the appellants described it and formed the physical boundary of a field in which cattle grazed, it is difficult to see how he could be in possession. If, however, the fence was where Mr Anderson told us it was, it is much easier to see possession by him and there would appear to be little if any activity by the appellants which would cast doubt on that (there being no suggestion that the appellants’ planning application involved any relevant activity by them in the disputed area).

[27] There is also an important consideration as to the appropriate time at which the issue of in possession falls to be determined. This is not the date of either party’s acquisition of their property. Nor is it the date of the hearing. Rather, it is the date of the application to rectify – 15 February 2007 – or perhaps the decision, apparently shortly after the letter of 13 April 2007 from which it was clear that there was a dispute about possession and that it would not be possible for the Keeper to proceed to rectification without that dispute being resolved by the court or Tribunal.

[28] However, there may be a period before that date when acts by one or other party may be no more than assertions referable to the dispute. As Lord Hamilton put it in Safeway, at Para 80, after noting that the question of rectification had been formally raised, and decided, on two dates in October 1999:-

“It is clear, however, that the issue of possession should not be looked at only as at October 1999 but over an appropriate tract of time preceding that month.”

In their Opinion in the same case, at page 34, the Tribunal indicated that matters may have “reached a stage where their actings on that date cannot properly be regarded as having evidential significance in relation to the present issue. This is very much a question of circumstances, and the significance of particular acts has to be considered in context. There is a difference between physical assertions of possession and actual possession and use. A ‘tennis match’ of assertion and counter-assertion in one form or another has sometimes been referred to. In this case, such a phase appears to have followed the letter from the interested party’s solicitor on 25 May 2006 and the subsequent attempt by the interested party to mark the correct boundary claimed by him on the ground. The position at the beginning of this phase appears to us important: if there had up until then been no possessory acts in the disputed area by anyone, as was the position in Safeway, the act of ‘staking’ the boundary might be very significant. If one party has actually been possessing and using the disputed area before the assertion of possession, ‘staking’ by that party may serve to reinforce his claim, but ‘staking’ by the other party may be of little significance, particularly if it is promptly challenged.

[29] In the present case, therefore, the position about actual use of the disputed area up until the rectification issue arose appears important.

[30] We note that no particular reliance, in relation to the issue of the position of the fence, was placed on the line shown in the Form P16. Not surprisingly perhaps in the case of a disputed boundary, this and the other plans produced do not tell a uniform story. There was a sharp conflict of evidence as to where the fence originally was. There was no suggestion that there were originally two fences. As will be seen from our findings in fact, we reached the view on the evidence and on a balance of probabilities that, contrary to the interested party’s account of matters, the fence was at the outset located where Mr Burr and Mr Will described it, on the west side of the disputed strip, and not where Mr Carl Anderson described it, at or close to the line of the boundary claimed by him. The correspondence produced, in our view, fortifies this conclusion and shows that when the letter of 25 May 2006 was written the appellants’ tenant Mr Will was even at that stage using the disputed area for grazing cattle, such use being in our view inconsistent with possession by the interested party. We do not accept that Mr Anderson was before then cutting grass in the disputed area or making any other use of it. The subsequent staking out by Mr Anderson of his claimed boundary, immediately disputed and leading a few months later to the rectification application, did not in our view establish possession by him. Although we entirely accept that actings of Mr Anderson’s family could count towards possession, we are unable to accept that there was a course of such actings before the rectification issue arose, and the fact that Mr Anderson and his family have more recently taken over the area on their side of a fence erected by the farmer in a position to the east also does not assist his position.

[31] Our findings are, following the oral evidence, somewhat imprecise about the dates of various events in the dispute. Indeed, we are not sure that we were told about all the movements of fences or posts over the whole period. However, Mr Burr and Mr Will were clear about the original position of the fence. In Mr Burr’s case, he was referring not just to the position when he acquired ownership of the field but to a prior period when he had a tenancy of it. Mr Will, who had not had the same degree of previous involvement, was more vague about the past but equally clear about the position since 2004, when he started to take annual grazing leases. Their evidence seems to us to be supported by the evidence of the cattle grazing up to the trees until a guard fence was put up. That evidence simply does not fit Mr Anderson’s evidence that there was no fence in the line of the trees and that the boundary fence was in another position. We were unconvinced by his evidence, which was not supported by anyone else, that the cows must have either jumped or got through the fence located where he claimed. Nor was any reason indicated why either Mr Burr or Mr Will would remove a fence which was, when Mr Anderson took possession of Hunthall, in the position claimed by Mr Anderson. Further, while both Mr Burr and Mr Will appeared to have quite strong views on this matter, we did not accept the submission that their recollections were not genuine.

[32] Apart from its incompatibility with other evidence, we had some specific reasons for doubting Mr Anderson’s evidence. It seemed to us that his position about the original position of the fence, which was of crucial importance to his case of possession, shifted to the extent of being not at all clear through the hearing, i.e. as put in cross-examination as well as during his own evidence. Mr Spence struck us as a competent and experienced solicitor with a clear understanding of the issue in this case, and if Mr Anderson had a clear different account of the position of the fence we would have expected that to have been put to Mr Burr and Mr Will. We also noted that at different times in his evidence Mr Anderson in fact located three different points in relation to the doorway of the old shed where he said the fence reached a strainer post. Moreover, having at the outset of his evidence-in-chief introduced this new line for the fence and having then, so that everyone was clear as to its location, drawn a straight line on a copy of the Keeper’s blown-up plan, Mr Anderson subsequently said that there was what he called a ‘dog-leg’, suggesting that it met a strainer post shortly before reaching the foundations of the old shed and at that point turned in.

[33] Mr Anderson’s evidence also did not, in our view, find any real support from his other witnesses or his productions. In particular, Mr Derek Anderson’s evidence appeared to us to be more helpful to the appellants’ position about the fence. We formed a favourable impression of Mr Derek Anderson’s evidence. During the earlier period of his son’s ownership of the property, Mr Anderson senior was frequently there keeping an eye on it as his son was working offshore or abroad. He did not seem to us to be taking any partisan position and appeared to be doing his best to remember, for example, the positions of fences. Unsurprisingly, in view of the number of changes over the years, he had a degree of difficulty in being certain. He said he had a vague recollection about the fences, but said he knew that there had been a barbed wire fence nailed to the trees on the outside boundary. He went on to describe the problem of the cattle coming up to the trees and damaging them, and said that he spoke to the farmer about that. He agreed that there was a temporary fence put up by the farmer. He also spoke of his son putting up fences “where the boundary on the original plans were” and of these being taken down.

[34] Shona Milne had come to live with Mr Anderson at the property in December 2005. Although parts of her evidence might seem to support his position, in that she did not remember barbed wire attached to the trees and that she went into “that bit” to dump waste, she was clear that she could not really help as to where fences were in earlier years. She had no recollection of cattle getting into the trees at any point. Based on the ages of her children, she was able to recall use of the area for play “more than a year ago”, and indeed spoke to a child, now aged 5, crawling about, but she also acknowledged that in giving that evidence she had assumed it was just the “general area” she had been asked about. Although we can accept her as a credible witness, and her evidence was consistent with that of her partner, we do not think that it can be relied upon as supporting his position as regards the earlier period leading up to the rectification application.

[35] The correspondence initiated by the letter of 25 May 2006 appears to us significant. We could accept that prior to that date the interested party may have tried to establish his claimed boundary by posts or fences on the ground, although there is really no clear evidence of that and of course Mr Anderson’s basic position, which we reject, was that that there was a fence in that position when he arrived. The correspondence, however, and in particular that letter, with its reference to the farmer “continually running his tractor” and “allowing cattle to run over” the ground claimed by Mr Anderson, appears to us to indicate that the farmer was then still using the field, including the area in dispute. In other words, while Mr Anderson may have attempted before then to take possession of the area claimed by him he had been unsuccessful in this and therefore required to resort to his solicitors. Further, the references in that letter to wishing to “mark out the area which belongs to him in order to establish a common boundary”, and in the letter of 22 June to Mr Anderson wishing to erect a boundary fence, appear to us inconsistent with the claim that there had been such a physical boundary, in the form of a fence, when Mr Anderson took possession of Hunthall.

[36] We should mention that there was another dispute in the evidence about items of the appellants’ property such as an old water pipe and soil said to have been found by Mr Anderson in the disputed area. The letter of 25 May 2006 mentions this. The evidence did not enable us to make any finding as to their location or attach any significance to this matter.

[37] Nor do the photographs produced as productions for Mr Anderson assist his position in relation to the earlier period. Looking at the photographs themselves, we had in fact a degree of doubt as to whether his evidence as to the various dates of these could be relied on, but in any event the oldest of them was said to have been taken “about 2 years ago”. They show the present position clearly enough, but do not assist in relation to the material time.

[38] The photographs show tree stumps in the line of trees. Mr Anderson said he cut these trees down “at least 3½ to 4 years ago”. We can accept that that activity involved working in the disputed area, but we do not accept that it took place before the time of the events leading to the rectification application, because we have found that the disputed area was at this time still being used for grazing cattle. We think it would probably have been after, or perhaps around the same time, as the fence attached to the trees started to be removed.

[39] There is one other matter to which we should refer in relation to the interested party’s claim to have been in possession. It does appear that from an early stage Mr Anderson started putting cuttings from his garden alongside the wall. In so far as there was a gap between the fence and the wall, this may not have been in the disputed area. There were varying views in evidence about the size of the gap, hence our finding of “up to about a metre”. In any event even if the cuttings did go into the disputed area, we would not regard throwing grass or other garden cuttings over into a field which was being grazed by someone else’s cattle as sufficient to establish possession.

[40] Mr Strachan accepted an onus of proof on the appellants on this issue. For the reasons given, we consider that that onus has been discharged on a balance of probability. In our opinion, the interested party was not a “proprietor in possession” within the meaning of the Act.

[41] That leaves the issue of inaccuracy outstanding. The case will accordingly be continued for that issue to be resolved. If the appellants establish the inaccuracy claimed, they will be entitled to rectification (of both registered titles) to the extent of the inaccuracy. Without expressing any view on the merits of that issue, we do express the hope that parties will each consider whether there is any possibility of a resolution which would avoid the expense of a further hearing. The area in dispute is, after all, as the letter of May 2006 stated, a relatively small area.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 12 November 2010

Neil M Tainsh – Clerk to the Tribunal