OPINION

Rivendale v Keeper of the Registers of Scotland and Clark

Introduction and Summary

[1] This appeal against a refusal to rectify, to be decided under Section 25 of the Land Registration (Scotland) Act 1979 (“the Act”) rather than the provisions of the Act of 2012 which is not yet applicable, arises out of an overlap of sasine titles. In 2010, the appellant purchased a cottage with ground, including, in her claim, at least some ground in front of the entrance to the cottage, on the basis of a 1950 foundation title. She has not, however been able to register title extending to that ground in front because the interested party has a registered title which accurately reflects her foundation title dated 1958, which title disponed all the ground to the front of the cottage. The appellant seeks rectification of the interested party’s title. In a question of ‘true title’, the appellant’s 1950 title, or, if that was a ‘habile’ title in relation to the disputed area, prescription based on it, should prevail (although a conveyancing glitch involving a mistake about title plans requires to be considered). The primary dispute relates to the extent of ground in front of the cottage owned by the appellant’s predecessors in title. The interested party concedes the position as to a strip nearest to the cottage and averaging around 2 metres wide. The nub of the dispute is an area beyond that strip. The appellant claims that this disputed area is a part of her front garden and does not correspond with a track which is shown on her title plan as not included in her ground; and further, that title to it has been acquired by prescription. The interested party has had a registered title since 2007 and has accordingly been able to treat the disputed area as an access to two building plots and remaining land of hers beyond. There have clearly been changes on the ground since 1950 and there was a sharp conflict of evidence bearing on the question whether the disputed area was or was not within the appellants’ predecessors’ title. The further question whether the interested party is a ‘proprietor in possession’ who would be prejudiced by rectification arises.

[2] Following its site inspection, and on the basis of all the evidence and submissions, the Tribunal has decided on the balance of probabilities that the interested party’s position is basically correct, i.e. that the present track substantially follows the route of the track shown as excluded from the appellant’s title, and also that title to that disputed area cannot be founded on prescription. The Tribunal, however, would place the ‘true’ boundary slightly further to the south-east, i.e. further out from the appellant’s cottage, than the interested party contended. This reflects our view that the appellant’s title (fortified by prescriptive possession) extended to slightly more than the average 2 metres conceded and, in relation to the position presently on the ground, covered the whole of the grass verge of the roadway and a very small portion where we think the track has ‘migrated’ by distances up to 0.65 metres from the original edge of the track shown on the relevant title plan. We consider the interested party to be a ‘proprietor in possession’ who would be prejudiced by rectification in relation to that small portion of the current track, but not in relation to any of the rest of the ground where we have found inaccuracy. We have accordingly upheld this appeal to the extent of declaring the appellant entitled to rectification of the interested party’s title in so far as it relates to ground between the front of the appellant’s cottage and the edge of the current track, on the basis of a new plan which requires to be prepared in order to reflect the measurements found by us at Para [20] below.

Procedure

[3] The appellant’s appeal identified two interested parties, firstly Santander UK plc, as heritable creditor, and secondly Lynne Elizabeth Clark, as registered proprietor of the competing title, ARG13460. The Keeper lodged Answers but did not attend the hearing. The first interested party did not enter any appearance. The second interested party (referred to as “the interested party”) opposed the appeal. At the oral hearing of the appeal, the appellant was represented by Frank Burr, Advocate, instructed by Messrs Moore Marshall, Solicitors. The interested party was represented by Mr Ferguson, of Stewart Balfour & Sutherland, Solicitors. Evidence was given on the appellant’s behalf by Rose Rivendale, Arthur McFarlane, a local resident whose relations lived in South Cottage for many years, and Judith Drewery, who has lived in a neighbouring cottage, Ladysmith Cottage, since about 1992. Evidence was given on behalf of the interested party by Lynne Clark, John McAlpine, who for some years visited elderly relatives in the locality, and Jasenda (‘Bee’) McAllister, a joint owner of South Cottage from around 1998 to 2006. The parties lodged a number of productions. Closing submissions were in written form, following receipt of which the Tribunal carried out a site inspection.

The Issues

[4] The appellant acquired South Cottage, Baluachrach, Tarbert, Argyll in about March 2010. Her application for first registration of this title has the reference ARG17148, but the title has in fact not yet been registered. She submitted an application for rectification, under Section 9 of the Act, in January 2011. This appeal, which she commenced in April 2012, purported to be for rectification of ARG17148. That approach was clearly misconceived, but at the outset of the hearing the appellant and the interested party sensibly agreed that the appeal should be treated as an appeal in which the appellant sought rectification of the interested party’s title, ARG13460. (The Keeper, although having lodged Answers helpfully identifying the position in relation to registration, has not sought to adjudicate between the parties and was not present at the hearing, but she subsequently confirmed that she had no objection to the appeal being treated as relating to ARG13460.) The issues, under Section 9 of the Act, are:-

(i) Whether there is ‘inaccuracy’ in the registered title ARG 13460, in relation to the boundary between that property and South Cottage; and

(ii) If and to the extent that there is ‘inaccuracy’, whether the interested party is a ‘proprietor in possession’ who would be prejudiced by rectification.

The interested party, however, conceded that she had not possessed a strip of ground, currently comprising garden plots for South Cottage, approximately 2.2 metres wide at the south-west and 1.8 metres wide at the northeast end of South Cottage, and would agree rectification to the extent of that strip of ground. We shall refer to the area excluding that strip as “the disputed area”.

Authorities referred to:-

Kaur v Singh 1999 SC 180
Safeway Stores plc v Tesco Stores plc 2004 SC 29 and, as Tesco Stores Ltd v Keeper of Registers of Scotland, 2001 SLT (Lands Tr) 23
Burr v Keeper of Registers of Scotland LTS/LR/2008/09, 12.11.2010
Nicol v Keeper of Registers of Scotland
Trs of Elliot of Harwood Tr v Feakins 2013 SLT (Sh Ct) 108
Stair Memorial Encyclopedia, conveyancing re-issue, paras 253-256

The Facts

[5] On the basis of the oral and written evidence, parties’ submissions and our site inspection, we found the following facts admitted or proved.

[6] The locality of Baluachrach lies on higher ground to the south of the inner harbour and village of Tarbert, Argyll. A plan of the locality is appended for ease of reference. The locality has been the subject of piecemeal development, with newer properties interspersed among older. Currently, approaching from the village, one turns left and finds an open area which mainly includes a hard-cored track leading in a north-easterly direction. To the left, there is a slightly more recently built cottage, Sunnyside, on the corner and then two older cottages, Ladysmith Cottage and South Cottage. The frontage of South Cottage includes the cottage, a shed extension on the suite of an old byre and some further rough grassland on either side of an old wall. To the right, there is a low wooden ranch-style fence and then high hedge, on the other side of which lies a modern house, Mudheireadh and its garden. South Cottage is the cottage purchased by the appellant. The interested party owns and lives in Mudheireadh, although that property is held on a different title from ARG13460.

[7] By two Dispositions both dated 13 February and recorded in the General Register of Sasines 21 February 1950, the landowner, George Knight, disponed two cottages, South Cottage, Balachruach, and West Cottage, Balachruach, to their sitting tenants. South Cottage was acquired by Catherine McQuilken, the subjects being described as:-

“ALL and WHOLE the subjects consisting of that part of the area of ground situated to the South of Tarbert Village known as Baluachrach lying in the Parish of South Knapdale and County of Argyll as occupied and possessed by the said CATHERINE McQUILKEN as tenant thereof which subjects hereby disponed are delineated and coloured pink on the plan annexed and subscribed by me as relative hereto a duplicate of which plan shall be recorded along with these presents in the Division of the General Register of Sasines applicable to the County of Argyll but which plan and the extent before mentioned though believed to be correct, are not guaranteed … ”

together with inter alia South Cottage, parts and pertinents, “all existing rights of way, rights of access”, etc. Each disposition had a title plan, but these were unfortunately mixed up, the South Cottage disposition having the plan for West Cottage and vice versa. Someone had apparently written the wrong cottage names on the headings of the plans.

[8] In 1960, the mistake about the plans was addressed in a “corrective Disposition” executed by George Knight. The preamble (as well as noting the misspelling of the disponee’s name) narrated the error about the plans and that Mrs McQuilken had reconveyed the subjects to him so that he could grant a Disposition de novo with the correct plan annexed. The dispositive clause is in slightly different terms as follows:-

“ALL and Whole that area of ground at Baluachrach, near Tarbert, in the Parish of South Knapdale and County of Argyll as occupied and possessed by the said Catherine McQuilken the former tenant thereof, which subjects hereby disponed are delineated in red and coloured pink on the plan annexed and subscribed by me as relative hereto (a duplicate of which plan shall be recorded along with these presents in the Division of the General Register of Sasines applicable to the County of Argyll) but which plan, though believed to be correct, is not guaranteed … ”, etc

[9] The plan annexed to the 1960 Disposition was substantially the same plan as that mistakenly annexed to the 1950 disposition of West Cottage. Like the other plan, it was prepared by Edinburgh estate agents by tracing the immediate locality from an Ordnance Survey map, with a drawn scale in feet. The subjects, comprising the cottage, an adjoining extension (byre) and surrounding ground, are delineated and shaded. The byre was shown as inset by a few feet from the cottage, i.e. its front wall was a few feet to the north-west of the corner of the cottage. Most of the ground is to the north and north-west of the buildings. To the south-east of the cottage and byre, a strip of ground to the front of the cottage, i.e. extending out from the cottage, byre and wall, is included. The width of this strip scales at in the region of 12 to 15 feet (precise scaling being difficult), curving slightly inwards towards the north-east end to not more than 10 feet. A double dotted line depicting a track lies immediately to the south-east, outside the subjects, leading from and to other buildings and beyond and linking in, some distance to the north, with other tracks. The plan mistakenly appended to the 1950 disposition of South Cottage (and not showing the South Cottage Boundary) depicted the line of the wall extending between the edge of the byre and the north-east end of the garden ground, whereas the plan appended to the corrective disposition only shows the boundary line at the edge of the track, some feet out from the wall.

[10] In 1955, Mr Knight disponed what remained of the Stonefield Estate, by a Disposition recorded 1 April 1955, to English Farms Limited. The structure of this disposition did not involve any bounding description or plan, but narrated the titles to 183 exceptions, including the 1950 dispositions of South Cottage and West Cottage (exceptions 169 and 175). The land disponed included the land adjoining the South Cottage property on its south-eastern boundary.

[11] In 1958, English Farms Limited conveyed 8.249 acres of the land disponed in 1955 to Stanley James Macgregor-Smith, by a Disposition recorded 17 July 1958. The subjects were described as:-

“shown and delineated red on the plan (which is part of Sheet CXCII.13 of the Ordnance Survey Map of Argyllshire Edition of 1920) annexed hereto … ” (and on a duplicate ingiven to the Register)

This plan, although in more detail, corresponds with the 1950 plan of South Cottage. It shows South Cottage, its byre and the wall or fence running in a north-easterly direction from them. It also shows the track referred to in the same position. However, it shows the boundary of the subjects disponed in the vicinity of South Cottage as adjoining the south-east walls of the cottage and its byre and the wall. The highlighted boundary line at this point appears superficially to follow a continuous line but can on closer examination be seen to contain two small kinks, firstly to the north-west where the byre adjoins the cottage but is slightly inset, and secondly at the north-east end of the front wall of the byre, back out to the south-east, where it then turns again to follow the line of the wall, i.e. this title follows the physical lines of the front walls of the cottage and byre and then the wall.

[12] The interested party’s registered title, ARG13460, is based on a Disposition by Donald Niall MacGregor-Smith (who succeeded Stanley James Macgregor-Smith) in her favour dated 16 March 2007. The subjects of this disposition were the lands disponed in 1958 under exception of 4 areas sold in the intervening period and were shown on an annexed plan, which corresponds with the registered title plan. These plans in fact differ slightly from the 1958 title plan. By 2007, apparently, the byre had been replaced by the present store building which is in fact not inset from the line of the front of the cottage but flush with it. These plans now show the boundary as a straight line adjoining the south-east walls of the cottage and the store building. The boundary then takes one kink, for a few feet in a south-easterly direction, before turning back in a north-easterly and proceeding along the line of the wall. These plans, unlike the previous plans, in fact show a small rectangle (a porch) protruding on the south-east side of South Cottage as within the subjects acquired by the interested party. The registered title plan also no longer shows the double dotted line track leading through the subjects but shows a single dotted line in a similar position with a separate single line branching off and leading to the South Cottage porch, both these single line dotted paths being within the interested party’s property.

[13] In the vicinity of South Cottage, the land included in ARG13460 is a relatively narrow strip, corresponding to the open area described at [6] above and leading up in a north-easterly direction to a wider parcel of ground.

[14] The interested party had previously also acquired two other areas of ground adjoining the other, south-east, side of this strip. In particular, in about 1992 she acquired the adjoining plot, on which she built the house Mudheireadh, completed in around 1994. Mudheiradh has a new separate driveway within its ground, following a similar approximately parallel course to the track outside South Cottage but several feet further away from the fence and hedge. Opposite South Cottage, a small natural mound or slope rises to the south-east of the track, within the ground of Mudheareadh close to its north-west boundary.

[15] In 2009 the interested party sold part of the ground within her title ARG13460, adjoining the north-east boundary of the South Cottage subjects, to a building company, which built two houses and sold these with entry dates of 4 November 2010 and a date around June 2011. The conveyances to the building company and then of the two new houses included rights of pedestrian and vehicular access over defined parts of the narrower strip. Title plans identifying these access strips identify them as ‘existing access road’ and show them to exclude a strip, including the protruding porch area, around 2 metres wide, immediately to the front of South Cottage. The interested party reserved access for herself, through the two building plots, to the balance of her own remaining land further to the north-east.

[16] The appellant purchased South Cottage with entry around March 2010, having first viewed it in around May 2009. It had been vacant since 2006 or 2007.

[17] Between 1950 and 2006/07 South Cottage was owned and occupied by members of the same family, latterly Michael Callan. He inherited in about 1995. He married Jasenda (‘Bee’) McAllister in around 2002. He carried out some work on the cottage, including removing the porch marked on the more modern plans. During much of this whole period since 1950, there was no well-defined track in front of the house, that area being occupied mainly by well compacted grass down to a burn around 5 to 6 metres across from the house. Although the cottage has more extensive garden ground to the side and rear, this is its sunny side, making this a natural area to sit out in. The area as far as the burn was from time to time used by the South Cottage owners for that and other purposes. However, it was also at least sometimes used for pedestrian access to the ground to the north-east. Until around the 1980s, there was another old cottage a short distance to the north-east. This was occupied as tenants by a family Macdonald, the last member of whom died, following which the cottage fell into ruins. The Macdonalds had no car but they and their visitors used the route between South Cottage and the burn to reach their cottage on foot. Latterly, Michael Callan had a car which he parked towards the north-eastern end, and two worn track marks (the nearer about 3 metres out from the cottage) in the grass then followed, at least approximately, the line and shape of the track shown on the old plans. It was possible (if Mr Callan’s car was not parked there) to drive a short distance beyond the South Cottage ground towards the Macdonald’s cottage, although not to turn in that area. This route also linked up with paths leading onwards, including towards Tarbert Castle, a historical monument of some interest, and was occasionally used by walkers going in that direction although there are other more direct routes to the castle.

[18] Following her purchase of the land in 2007, the interested party set about preparing and selling the two building plots to the north-east of South Cottage. In 2007 or 2008 she culverted the burn, to enable the rough track through to the building plots to be widened on its south-east side. She allowed contractors for the building company to put down hard-coring on the widened track. She occasionally strimmed the grass on the south-east side of the track.

[19] The appellant purchased South Cottage in order to renovate it extensively. After taking entry in March 2010, she started such work, although she has only occasionally actually lived in the cottage. On the basis that, as she thought, she owned the ground at the front, including the track, she started making use of the ground in various ways which quickly attracted opposition from the interested party. In particular, she on one occasion not long after taking entry erected a gate across the track. This was removed within a day or so on behalf of the interested party. The appellant occasionally strimmed grass on both sides of the track. She deposited debris of stripped materials from within the cottage on the grass outside. At least some of the work building the two new houses was carried out, involving vehicular traffic using the track, after March 2010.

[20] The north-western edge of the currently existing track lies at the following distances from the frontage of South Cottage:-

At southmost gable 3.2 metres
At gable between cottage and store 2.54m
At north end of front wall of store 2.06m
At north-east corner of subjects 1.18m.

[21] The current track lies generally on the ground depicted in the 1950/60 and 1958 title plans as a track, but is wider and follows a straighter course in the vicinity of South Cottage than the track depicted on these plans. The edge of the current track is around 0.65 metres closer to the southmost gable of the cottage; around 0.27m closer to the gable between the cottage and the store; around 0.3m closer to the north end of the front wall of store (formerly, byre); tapering to nil at the northern end of the South Cottage land.

Appellant’s Submissions

[22] The written submissions of parties may be referred to for their whole terms, and are here summarised.

[23] On the issue of inaccuracy, Mr Burr submitted that the appellant is the “true owner”. In the 1950 Disposition of South Cottage, the plan was not guaranteed and the description in the dispositive clause was: ‘as occupied and possessed by the said Catherine McQuilken’. That made it necessary to consider prescriptive possession under Section 1 of the Prescription and Limitation (Scotland) Act 1973. The general description in the dispositive clause was of the type for which Section 1 was intended. If there was occupation under a title which was habile to include an area of land, which this title was because of the description, possession over the prescriptive period would found a title even against competing titles. Reference was made to Auld v Hay, per, LJ-C Moncrieff at 668: the title need only be conceived in terms capable of conveying the property in dispute, and might be ambiguous, indefinite or general. The disputed area might also be regarded as part and pertinent, but that was otiose where there was a general description. The primary submission was that either South Cottage was correctly conveyed in 1950 because of the description in the dispositive clause, or alternatively there was occupation by Catherine McQuilken over the prescriptive period. Under reference to Section 14(1)(a) of the 1973 Act, there was on the evidence possession for the full prescriptive period. The secondary submission, on the basis of the 1960 disposition, was similar: the owners of South Cottage again had possession over the prescriptive period and that prescriptive possession gave them a better title than those relying on the 1958 disposition. There was insufficient evidence either way on the question whether the dotted lines represented an area within the disputed area or the line of an old drove road outside the disputed area. Either under the primary submission (1950 title) or the secondary submission (1960 title), the South Cottage plan carried little if any weight and the general description combined with possession on the ground must be used to determine the extent of ownership. The evidence of Arthur McFarlane and Jasenda McAllister as to use of the disputed area between 1950 and 2007 demonstrated prescriptive possession. Even if the disputed area formed an access “track”, that did not detract from any right of ownership, even if there were a formal right of way or servitude.

[24] As to whether the interested party, the “proprietor” was “in possession”, Mr Burr referred to Kaur v Singh, Nicol v Keeper, Burr & Anr v Keeper and, particularly, Safeway v Tesco per, Lord Hamilton at 77 to 84. Further, possession could be lost by contrary or interrupted possession and there could only be one person in possession at any one time. The appropriate time for looking at possession was around the time of the application for rectification, although there would be a period of time leading up to then that would be taken into consideration. Evidence of use by the appellant might go to demonstrating lack of possession by the interested party, as would other evidence of use of the area. The interested party had conceded that she was not in possession of the area ranging from 2.2 to 1.8 metres at the front of the cottage, so that the Register could be rectified at least to that extent. Mr Burr referred to different uses spoken to by the appellant, supported by Judith Drewery. The only direct physical use spoken to by the interested party was occasional strimming of grass and walking dogs “if she ran away”. Much of what was going on was work by the builders of the new houses. She had in effect given them free reign over the disputed area. That was not possession in the sense required by the Act, as it did not involve sufficient corpus by the interested party. The persons with the most actual physical possession were the builders. Also, the work on the burn had been contracted. In any event, there was little evidence of actual physical possession at the relevant time.

[25] Mr Burr also submitted that, while demonstrating prejudice might not be a very high hurdle, on the evidence, there would be no prejudice to the interested party. She now did nothing herself on the disputed area, having granted full access over it. There might be prejudice to the owners of the new houses but they were not proprietors in possession.

[26] On expenses, Mr Burr submitted that the normal rule should apply. There should be sanction for junior counsel, under the test in MacPhail, Sheriff Court Practice, at Para 12.25, the case being one of serious difficulty, and also important to the appellant, who had been faced with a claim that someone else owned the land directly outside her front door. Any award of expenses against her should be as an assisted person, modified to nil.

Submissions for Interested Party

[27] The interested party’s position was: the appellant has neither title to nor possession of the disputed area; the interested party’s registered title is correct and accurate; the interested party is a ‘proprietor in possession’; and the rectification sought would, except in respect of the identified strip of ground immediately in front of the cottage, be to the prejudice of the interested party as a proprietor in possession at the relevant date, 14 January 2011.

[28] On the titles, Mr Ferguson submitted that the 1950 and 1960 titles each provided only a ‘common law’ description of South Cottage. The plan, although not guaranteed, was important enough that rectification of the error with the plans was required. The plan was part of the description and, although of a fairly basic nature, was illustrative of what was being conveyed and what was intended at the time. The plan might be inaccurate as regards the precise position of the track, the edge of which is, on the evidence, at least now, closer to the front wall of the cottage. The evidence, however, supported a conclusion that the track, both before and after its upgrade, is the same and only track as existed when the McQuilken dispositions were granted. Boundary with a burn was not consistent with the McQuilken deed plan which indicated a track. Evidence of a track in another position, either on the same line as the burn or further to the east, was indirect and should not be preferred to that of the interested party and John McAlpine from the dates of their respective knowledge. Thus the conflict between the respective titles was restricted to the area generally between the front wall of South Cottage and the north-west edge of the current existing track, i.e. the strip conceded by the interested party.

[29] As to the extent of land ‘occupied and possessed’ by Mrs McQuilken as tenant in 1950, although Mr McFarlane referred to a grassy strip down to a burn, he gave no significant evidence in relation to the nature of actual use, occupation or possession by Catherine McQuilken of ground at the front of the cottage. Thus, without some reliance on the plan, the appellant was unable to show or establish the extent of ground conveyed to Mrs McQuilken. The 1960 Disposition therefore could not be used as a basis for prescription.

[30] It was acknowledged and accepted that if the 1960 Disposition was habile to include the disputed area and it was shown that there had been the necessary possession, a real right would have been acquired and would prevail over that of the interested party. However, the disputed area was first and foremost an access route for South Cottage itself and for other properties and lands beyond. Accordingly, activities such as strimming grass, planting and growing flowers and sitting out in the sun should not be considered to evidence possession. Such activities would be tolerated as not interfering with the access requirement, and, after the death of the last of the Macdonalds, would simply not be an issue for the owner, Mr Macgregor-Smith. There was conflicting evidence in relation to enclosure at either end. The limited use of the disputed area by the proprietors of South Cottage over the years was not sufficient to establish prescriptive possession.

[31] Mr Ferguson submitted that the interested party was a ‘proprietor in possession’ of the disputed area. On the evidence, by January 2011 the access track had been upgraded and widened. The builders had completed their purchase of the building plots. Photographs apparently taken in 2012 presented a fair reflection of the disputed area and access track at the relevant time. The disputed area was fundamentally and essentially part of the solum of the upgraded access track. This was a small part of the land acquired in 2007, the section with three cottages on one side and Mudheareadh on the other being most obviously an access strip. Such activities as the appellant carried out would be tolerated as not interfering with access. The appellant’s attempt to enclose the area had immediately been rebuffed. The interested party’s fairly limited personal use of the area should be viewed in the context of it being principally part of an access track, a very small section of her overall estate. In that context, enclosure by her was not necessary to have or create possession. A strip of land could be possessed for access purposes. The interested party only became aware of a competing claim to the disputed area in 2010, and demonstrated possession by preventing enclosure and blocking of the track. As well as using the track personally, she had upgraded and widened it and granted servitude rights of access over it. It was trite law that possession might be natural or civil. Each and every occasion on which access was taken in exercise of the rights expressly conferred by the interested party should be construed as a possessory act properly attributable to her and evidence of her continued civil possession of the land.

[32] Further, although no evidence of prejudice had been led at the hearing, it was self-evident that there would be prejudice to the interested party if she did not have title to the disputed area. The appellant might seek to deny her access to the remainder of her land, and she would be unable to honour her grant of servitude rights to the builders from whom third parties had since acquired right.

[33] On expenses, the interested party sought expenses if successful, unless the Tribunal was minded to modify expenses against the appellant to nil, in which case no expenses should be awarded against either party. However, if rectification in respect of the disputed area were ordered, the interested party should not be found liable in expenses. She should be viewed as an ‘innocent party’, the title granted to her in 2007 being ‘clean’ and without exclusion of indemnity. There was no suggestion of fraud or carelessness on her part. She had no alternative in view of the importance of access over the disputed area but to resist the application for rectification and this appeal. It was perhaps surprising that the appellant appeared unaware of the title issue before completing her purchase, as a ‘P16 Report’ would normally be expected to highlight an existing competing registered title. The question of sanction for counsel was left to the Tribunal.

Tribunal’s Consideration

[34] This dispute between parties affected by an unfortunate overlap in sasine titles presents both factual and legal issues. There were some sharp conflicts of factual evidence, although we have not felt it necessary to resolve all of these. The central factual issues in dispute are whether the track as it currently exists is located on the ground on which a track was depicted on the old title plans and whether the disputed area has over the years been used as an access route to land beyond South Cottage to the north-east. Depending on the factual position, the main legal issues relate to interpretation of the 1950 (or perhaps 1960) title, including whether that title was habile to include the disputed area; whether there was such possession over the years as to found title by prescriptive possession; and whether, in the particular circumstances, the interested party is a proprietor in possession who would be prejudiced by rectification removing the disputed area (or any parts of it) from her title.

(i) Inaccuracy

[35] There was no expert evidence on the question whether the current track occupies the ground depicted on the old plans and maps. We have used our own expertise to reach the views that the South Cottage title plans were based on tracing from Ordnance Survey maps and that using the scaling drawn beside the plans the width of the strip of ground shown on the plan as included in the subjects at the front of the cottage is approximately 10 to 15 feet. There appear to be at least three reasons for imprecision: this is a tracing; the scale is simply drawn on; and of course the width of the lines. Nor for that matter need the position of the track shown on the map have been precisely correct. That may be why the deed declares the plan not to be guaranteed. We do, however, note that it was professionally prepared (although there is nothing to say whether these surveyors visited the locus or merely used the map), and it was “believed to be correct”. That brings us to another deduction we make, which is that, as the 1958 Disposition used the 1920 Edition of the map, the 1950 plans may well also be based on that edition. If that is correct, it appears probable that there was such a track as shown when the 1920 Edition was prepared, but it might no longer have been there, or might not have been much of a defined track, in 1950. That could also account for the fact that no burn is shown, but on that matter there is no dispute on the evidence that there was indeed a burn for quite some time, and indeed its position at the date when it was culverted – partly on the south-east edge of the track and partly just beside the track on that side - is reasonably easy to ascertain on the ground. The burn might possibly have started life as a ditch dug some time after the 1920 map survey, perhaps extending the open part of a nearby burn which is shown and is still present on the ground to the north-east.

[36] Against that background, our site inspection was of considerable assistance. As we have said, it is not possible to scale the old plan precisely, but we were struck by the similarity in general shape of the course of the present track and that shown on the plans. The plan shows, in effect a gentle crescent shape outside the three cottages. At the south end, a curved shape at the corner has been interrupted by the apparently slightly more recently built cottage, Sunnyside, but a gentle crescent-shaped curve (subject to some slight straightening in the middle) is evident as the route passes Ladysmith and South Cottages. Before the end of the south-eastern boundary of South Cottage, the plans show the route curving back so as just to cross an extended line of the front wall of South Cottage. The general shape can be seen on the ground. Measurement from the plan, although only very approximate, fits, particularly when a small allowance is made for some straightening. Although it is obviously a matter of degree, neither the shape depicted on the plans, nor the measurement on the basis of the plan, appears to fit a track located further out from the cottage: the further away the track, the more unlike the shape on the plan it appears and the less the measurements fit. We also noted a small apparently natural topographical feature to the east, where the ground rises quite steeply to a small rocky mound, making a track at that particular point unlikely.

[37] However, we have also considered what assistance is to be had from the oral evidence on the questions whether this area was used as an access route and whether and where there was formerly a track.

[38] We must say that, although two of the six witnesses obviously had strong personal interests, there was no indication of any of the other four having any interest in the dispute (although they may have done), and all six gave their evidence, on the whole, in an apparently straightforward way. The appellant seemed slightly far out in her view as to where the old track had been, and we were a little surprised at the degree of familiarity which Mr McFarlane showed with the dispute, old deeds, etc., with which one might not have expected him to be familiar. However, we would generally find it difficult to accept or reject any particular parts of their evidence on the basis of demeanour or the manner of giving evidence. We have looked at all the evidence, along with what we saw ourselves, in an attempt to resolve conflicts. Some conflicts of evidence were somewhat surprising. For instance, two witnesses were clear that during Michael Callan’s ownership he had a gate across, opposite the south gable of the cottage, for several years, whereas his ex-wife was quite clear that the only time there was a gate was when she put one up but removed it almost immediately following protests and legal advice, evidence supported by another witness. That is one conflict of evidence we have not found it necessary to resolve. Our factual conclusions on the material matters are on the balance of probability.

[39] On the question whether the disputed area was in the past used as an access route (whether or not there was any defined track on it), we preferred the evidence of Mr McAlpine to that of Mr McFarlane. Mr McFarlane, who had apparently visited South Cottage as a relative since about 1951, when he was 4 years old, said that he only saw people walking on the other side of the burn. A way up to the Macdonald’s through the disputed area would not be possible because it was marshy further up. Mr McAlpine is not as old as Mr McFarlane, being born in 1960, but he was related to the Maconalds and visited them, then elderly people, very frequently until the last of them died. This was for purposes such as errands and, when he was younger, collecting Brooke bond cards. He is very familiar with the area, having a workshop close by. He was quite clear that he used the track up past South Cottage, on that side of the burn. It might have been dampish but it was passable. He did not think there was ever a road or track on the other side. Mr McAlpine’s evidence seemed to us more direct and reliable. There may not have been very much pedestrian traffic, as the Macdonald’s house seems to have been the only house reached by that route. It is also possible that Mr McFarlane occasionally saw people walking on the other side of the burn in the years before Mudheireadh was built, but we accept that the route of the present track was a route giving access to land beyond South Cottage.

[40] Mr McFarlane said that there had in the past been a track following the course of the burn. He said he had been told that by his uncle and his aunts.

[41] The appellant said that the interested party’s new drive was built in the position of the old track. We did not see any basis or support for that suggestion.

[42] Mr McAlpine spoke to the track, along which he said he walked, being better defined in that time (around the 1970s and early 1980s). That would fit the position that there was then an occupied house beyond it. It is, however, quite possible that there was little in the way of a defined track for much of the period since 1950.

[43] On a balance of probability, we made the finding recorded in Para [21] above, that the current track lies substantially on the ground depicted in the old plans. We have included in that finding the distances by which we think the current track, having been slightly straightened, strays on its north-west side from the position of the old track. There can of course be no precision about that, but adding those distances to the distances out from the cottage to the current track, which we found in Para [20], ranging from 3.2m at the south gable of the cottage to 2.06m at the north gable of the store (byre), the measurements are in line with the, albeit even more imprecise, measurements from the plans.

[44] So we substantially reject the appellant’s contention that the position of the track shown on the plans is further out from the cottage than the position of the current track. The west edge of the current track is, however, slightly closer to South Cottage.

[45] In interpreting the 1950 South Cottage title, we consider that we can and should in the particular circumstances use the plan which did not appear in the title until 1960, because even though not technically appended to that deed, it was in our view available as evidence of what was understood to be the extent of the tenancy and therefore intended to be conveyed. There was no other direct evidence of the extent of the tenancy, and in the particular situation it seems to us that some straying outwards over the area of a walking route or track, in the years following the end of the tenancy, does not alter the position indicated on the plans. The position of the track was also shown on the West Cottage plan wrongly appended in 1950, although there is no specific boundary delineation or shading at this location on it. Therefore, as a matter of interpretation of the 1950 title, the appellant cannot show that her ‘true title’ includes the area of the current track. However, inaccuracy is established in respect that the interested party’s 1958 foundation title cannot have disponed the land immediately in front of South Cottage, including the small area of the current track, tapering from 0.65 metres down to nil, identified in Para [21].

[46] The appellant, however, primarily advances her claim on a different basis. She founds on prescriptive possession based on the dispositive clause of the 1950, or alternatively the 1960, title, without reference to the plan. The first issue here is whether the 1950 title is habile to found prescriptive possession of the disputed area, even although we have found that the current track is substantially outside the subjects shown on the plans. The appellant founds on the clear authority in Auld v Hay to the effect that if the terms of the grant are such as may include the subjects claimed, and the requisite possession of the subjects gives title, even where the grant is equivocal. In other words, in a question of prescription, enquiry into the title can stop if it may include the area which has been possessed. The appellant argues that as there is here a general description (‘as occupied and possessed by the tenant’), and the plan is not guaranteed and, again as a general proposition, the dispositive clause rules, the plan is not taxative and “is of little or no weight”. Therefore, it is argued, the title is habile.

[47] The contrary submission for the interested party points out that the plan was considered important enough for a corrective disposition to be required, and also suggests that the appellant in fact needs to use the plan to establish the extent of ground conveyed, so it cannot be ignored. Possession over to the burn would be inconsistent with a title up to the edge of the track.

[48] We have not found the question whether the title is habile to found prescriptive possession to the extent claimed by the appellant altogether easy. It could be suggested that the type of enquiry made here as to the position of the old track is the type of enquiry which is not required where there is a general description and possession consistent with that. We have decided, however, that that is the wrong way to look at this title, because the description of the subjects refers to the plan as indicative of, not just the precise measurements, which it does not guarantee, but also the extent of the tenanted subjects being conveyed. The plan cannot simply be ignored. It is the way the title indicates the extent of the tenancy and therefore of the grant. It shows an intention not to include the solum of the track. It seems understandable that the estate owner would not grant a tenancy, as opposed to access, over such an access route, nor, on selling to the sitting tenant, ownership, which would leave him with only access rights. This matter might be more easily approached by postulating (on the basis of the same wording in the dispositive clause) that there was indisputably, and without the need for any enquiry, a track or road in the position shown on the plans but the disponee claimed to have possessed the track for the prescriptive period. That might be a clearer situation in which the title would, as we see it, clearly not be habile to include the track, but the answer should be the same. Put shortly, in our opinion, there is nothing in the wording of this dispositive clause which justifies ignoring the clear limitation on the plan of the extent of the subjects. The title is not conceived in terms capable of being construed so as to convey the solum of the track, and is not habile to found title to the area of the track as it was by prescriptive possession.

[49] So, on the facts found by us, we do not accept the appellant’s submission based on prescriptive possession of the area of the current track. We do not, however, go all the way with the interested party’s submission insofar as it covers the area between the track and South Cottage. As we understand it, that submission is that, apart from the conceded area around 2m wide, the whole area is essentially an access, with the result that the acts of possession claimed by the appellant, being minor acts which would be tolerated so long as they did not interfere with the primary use of the area as access, could not found prescriptive possession. We do not accept this. Construing the 1950 title, including the plan, the whole area between the cottage and the track was conveyed, on the basis that it was understood to be within the tenancy. In relation to this area, there is no need to consider prescriptive possession. There is no suggestion of any adverse prescriptive possession. Further, if we did have to consider prescriptive possession by the appellants’ predecessors in title, the claim would be of possession as owners of garden ground not subject to access rights. The title would be habile for this area. t seems to us clear on the evidence of Mr McFarlane, Jude Drewery and Jasenda McAllister, that there was easily enough for prescriptive possession of this area. In other words, the interested party’s concession does not extend far enough, at least in relation to the issue of inaccuracy. She concedes that some of the area in front of the cottage was South Cottage garden ground, but she has got the extent of that wrong. The appellant was the “true owner” of this area, as far as the edge of the track as shown on the old plans, i.e. adding the measurements in Para [21] to those in Para [20].

(ii) Proprietor in possession

[50] This brings us to the issue whether the “proprietor” (here, clearly, in this context, the interested party, who has the registered title) is “a proprietor in possession” who would be prejudiced by rectification. If so, rectification can only be granted in certain situations listed in section 9(3) of the Act, none of which is suggested in this case.

[51] In this particular case, we do not think that this question is answered simply by looking at the area of ground in relation to which we have found ‘inaccuracy’ in the interested party’s registered title and deciding whether she was, or was not, at the material time, in possession of that area as a whole. We say that because we think that in this particular case there are two different characters of use and enjoyment of the area in question – as garden ground of a cottage and as an access track. The issue of possession appears to us, on the evidence in this case, to become substantially a question of finding where one ends and the other begins, rather than of determining whether the proprietor is in possession of the whole.

[52] In what is regarded as the most authoritative guidance on this issue, Lord Hamilton said in Safeway v Tesco, at Para [77]:-

“Where the issue 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 can properly be drawn as to the extent of his possession.”

It seems to us, following that guidance, that there can be cases in which a ‘proprietor’ claims to have possessed an area of ground in a particular way (in this case, as an access track), but only part of the land has that character, so that the claim can only cover that part. The interested party’s concession as to the strip of ground taken up by flower beds appears to recognise that approach. The interested party accepts that part of the area of which the appellant is the “true owner” is in fact part of the garden ground of the cottage and thus not possessed by her. The appellant, however, claims that all of the disputed area is part of the garden ground of the cottage. As it seems to us, therefore, the first question is whether any more of the disputed area – now, the area which we have found to be inaccurately within the interested party’s title - has this character as garden ground and, if so, whether the interested party is in possession of that part.

[53] Lord Hamilton also said, earlier in Para [77]:-

“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.”

[54] The area of grass up to the edge of the current track seems to us to be part of the garden ground and not part of the track. We do not find the interested party to have been in possession of this area at the time of the application for rectification. As parties have submitted, again following the guidance in Safeway v Tesco, this issue is not decided just at that instant of time, but rather by looking at an appropriate period leading up to it. There are actually two periods before the rectification application, one when South Cottage was vacant and one after the appellant took entry. The interested party’s contractor had at some unknown date, without her authority, as she told us, removed a short section of wall at the south gable end of South Cottage. Apart from that single action, we do not consider the interested party to have had any significant use or enjoyment of the area of grass between the flower beds and the track. The appellant spoke to some use of this area after she took entry. It does not appear to us that the interested party contested that, any more than she contested the appellant’s possession of the flower beds. There is no indication of her using this area (as opposed to the track), to obtain access to the rest of her land to the north. She had, admittedly, granted a right of access in favour of the builders, apparently (on the basis of the plan annexed to the Disposition dated 11 November 2009) over this area, but this is ground on which there was no such road or track, so there is no physical possession of this area by exercising an access right to be considered.

[55] In short, as far as the grass between the flower beds and the track is concerned, we find this to be in essentially the same position as the flower beds. Whatever possession the interested party had of the track does not in our opinion extend to possession of this area. The appellant is entitled to rectification at least up to the edge of the track.

[56] That brings us to the remaining triangular strip referred to in our finding at Para [21], where we have found that the current track is straighter than the position of the track in the appellant’s ‘true’ title. It is not a large area, as it tapers from an initial width of, on our finding, 0.65 metres down to nil. The competing submissions were directed at the appellant’s main case of inaccuracy in relation to the whole of the area of the current track, but appear equally applicable to this small area of the track. They reveal a divergence of approach to the legal issue of possession in this context. Mr Burr’s careful submission on behalf of the appellant is that having “given free reign” (sic) to the builders, and also having “contracted” work on the burn, the interested party might have had the necessary animus, or mental element, for possession but she cannot be said to have had sufficient corpus, i.e. actual physical possession. Mr Burr also argues that, in any event, the interested party’s evidence as to possession did not focus on the relevant period, i.e. the period leading up to 14 January 2011. The interested party, on the other hand, points to her admittedly fairly limited personal use of the land as appropriate in the context of an open area of ground which principally involved an access track, together with showing her possession after she became aware of the appellant’s claim by preventing the appellant from blocking the track with a gate. She had also upgraded and widened the track, and granted servitude rights of access over it. She asserts that it is ‘trite law’ that possession can be ‘civil’ rather than natural, and founds on her express conveyance of a servitude right of access, so that, it was submitted, each and every occasion on which access was taken by the builders, their disponees and others permitted by them, should be construed as a possessory act properly attributable to her.

[57] Factually, the position is that the interested party had in 2009 granted an access right over this area and her grantees, the building company, had, before the appellant took entry to South Cottage, hard-cored and surfaced the track. The interested party had also had contractors culvert the burn, apparently before the track was widened, but it can safely be said that that was beside, and not part of, the area now in issue. The builders sold and gave entry, apparently to one completed house, with the same access right, in November 2010. So, as part of the access road, this area of ground had been developed and had come into use as an access road, in reliance on rights conferred by the interested party (and not, it can be said, in reliance on the general conveyance of existing access rights to the 1958 disponees and their successors). The interested party, having retained ownership of ground further to the north, had also reserved a right of access for herself, as such owner, so that the disputed area of the track was still an access area for her, but the only use of that she spoke to was occasionally having walked her dog on the route. When the appellant, shortly after taking entry, attempted to block the access route on the basis of her view that it was part of her garden and she was not obliged to allow access to the properties beyond, she was immediately rebuffed.

[58] We do not think that the position about civil possession in the context of this statutory provision is as clear as the interested party submits. There is no doubt that in this particular area, the law is governed by the policy consideration of protecting registered proprietors who themselves physically use and enjoy the subjects, although it does seem clear that there must be at least some extension of the purely literal meaning of that, as for example in the case of a company owner. Consideration of Safeway v Tesco (at Para 82) and Kaur v Singh (at 419F and 419H) suggests judicial reservation as to how far possession through others may qualify. It is not completely clear to us that exercise of access rights granted by the proprietor can count. We would need fuller submission before deciding a case such as this on such broad grounds.

[59] However, we consider that Safeway v Tesco, particularly at Para [78] (and, in the Tribunal, at 35C) do confirm that the issue is very much a matter of fact and degree in the particular circumstances. We also note an interesting very recent discussion and decision by Sheriff Kelly in Trs of the Elliot of Harwood Trust in a fact situation which perhaps raised the issue of civil possession more sharply, although it is not sufficiently in point to require us to require further submissions on it.

[60] Again, the decision upheld by the court in Safeway v Tesco confirms an acceptance that in this context, although possession is considered as at the time of the rectification issue, once possession is established, it may be presumed to persist. If possession has been established before the period to be looked at, and not broken or interrupted, it may still subsist even although there has been no overt act by the proprietor during the period leading up to the rectification application. We consider that the interested party did sufficient to establish possession of the track, including the very small area presently under consideration, and her possession did persist at the material time. Her culverting of the burn, through contractors, seems to us to have been sufficiently related to taking control of and possessing the track, even although the burn was not actually situated within the area now under consideration. She made some slight personal use of the track. She clearly allowed its widening and improvement.

[61] The interested party also showed her possession and control by immediately having the obstructing gate placed there by the appellant removed. This act requires to be considered as to whether it was truly an act of possession or, on the other hand, merely part of what has been referred to as a ‘tennis match’ of claim and counter-claim. It seems to us that on a proper view of the circumstances of this case, the episode of the appellant putting the gate in place and the interested party removing it served to confirm the interested party’s possession of the track and should not be ignored as part of a ‘tennis match’. The Tribunal in Safeway v Tesco appears to have been taking a similar view at 2001 SLT (Lands Tr) 36J (although Tesco were not in that case the ‘proprietor’).

[62] So in relation to the small triangular strip on the current track, we do find the interested party to be ‘a proprietor in possession’. We would have reached the same view had we upheld the appellant’s main claim in relation to the current track. In that situation, the culverting of the burn, at least partly on the area then under consideration, would have been a stronger adminicle favouring the interested party’s position.

[63] We have finally to consider the competing positions on prejudice. We agree with the interested party that this may be clear without the need for specific evidence. Again, we would follow the Tribunal’s consideration of this matter in Safeway v Tesco, at 37G to 38K. In submissions again directed at the case on the whole of the current track, the interested party claims that she would be prejudiced by the appellant’s ability to deny her access to the remainder of her estate, which she may wish to develop further. That must be right. What is perhaps not quite so clear is whether she would be prejudiced by potential claims by the builders and their disponees. We say that because prima facie she has, as the registered proprietor, granted what might be thought to be valid servitude rights. However, we do not require to decide that issue.

[64] We have considered whether the removal of her title to the small triangular strip of which we have found her to be in possession would be to her prejudice. This is somewhat technical and almost de minimis, but in our opinion losing this small part of the track, narrowing it slightly at this point, would prejudice the interested party, again at least having regard to her entitlement as owner of land which benefits from the access track.

[65] Our conclusion therefore is that, although the inaccuracy in the interested party’s title extends to this small triangular strip, she is in relation to it a proprietor in possession who would be prejudiced. To that extent, the appellant is not entitled to rectification.

Conclusion

[66] Accordingly, we find the appellant entitled to rectification of the interested party’s title ARG13460 to the extent that there should be removed from that title not only the strip conceded by the interested party, but also the grass area between that strip and the edge of the current track. A new plan will be required and should show the distances found at Para [20] above. We propose simply to make a finding of entitlement rather than an actual rectification order, leaving it for the Keeper to finalise the rectification.

Expenses

[67] Having considered the submissions on expenses, we have decided to award no expenses due to or by either party, for two reasons. Firstly, although we consider that the interested party has been successful on the main issue whether her title was inaccurate in relation to the current track, there is a measure of divided success, in respect that the appellant has been found entitled to rectification by removal from ARG13460 of some land, thus restoring her ownership of a parcel of land in front of South Cottage. Although the interested party conceded this in respect of one strip of ground, that concession came at a relatively late stage in the pleadings and in any event we found that it did not go far enough. The appellant will now be in a position, which she would not have been but for maintaining this appeal, to use this parcel as she chooses, for example as garden ground, parking space or driveway. Secondly, in so far as any award of expenses in favour of the interested party might have been appropriate, she indicated that had we been minded to modify expenses against the appellant as an interested person to nil, she would simply suggest that there be no award of expenses. It may be that we were not really given enough information about the appellant’s overall circumstances to offer a definite view on that, but there was certainly nothing in relation to the appellant’s conduct of this appeal which would count against such modification, and as this is not really opposed it would be reasonable to anticipate it being granted. So this provides an additional reason for not making any award against the appellant.

[68] The question of expenses against the interested party does not really arise, but we should just record that we would not have been able to uphold the submission that she should be regarded as an “innocent party” against whom no expenses should be awarded if she was unsuccessful. In a sense, both these parties are “innocent”, having been caught in a difficult situation of overlap of sasine titles, but that is not really the point in an issue about expenses, where the ‘success rule’ implies that the unsuccessful party has wrongly maintained an action, or the defence of an action, and is generally held liable to the other.

[69] We should also record that we would have sanctioned this case for the employment of junior counsel, as both the factual and the legal issues appear to us to have amply warranted that.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 30 October 2013

Neil M Tainsh – Clerk to the Tribunal


Plan