OPINION

Philip Burton & Another v (1) Keeper of the Registers of Scotland and (2) John Hetherington & Another

Introduction and Summary

[1] This appeal under Section 25 of the Land Registration (Scotland) Act 1979 (“the Act”) involves a question under Section 9(3) of the Act on the issue of possession by registered proprietors whose title is agreed to be inaccurate. The appellants, who are seeking rectification, are the ‘true owners’ under their sasine title of a strip of ground at the eastern edge of their property which may fairly be described as a smallholding. The interested parties have acquired, for forestry development, a large area to the north, together with this strip, which was erroneously included in their predecessors’ registered title. The appellants see the strip as part of a larger rectangular area which they have chosen to leave as a ‘natural habitat’. The interested parties see it as a future access to the adjoining main road, to be used in the future for the removal of timber. The only issue is whether the interested parties are “a proprietor in possession” within the meaning of Section 9(3): if so, the appellants, despite being the ‘true owners’, are not entitled to rectification.

[2] The Tribunal has decided in the particular circumstances of this case that the interested parties, although clearly “a proprietor” under this provision, were not, at the relevant time, “a proprietor in possession”. Our full reasons are set out below. In summary, we have had regard to the physical situation at the subjects, to the interested parties’ possession of all the subjects in their title, including in particular the extent of their possessory acts at the disputed strip itself, and to the position of the appellants, who, as we see it, were clearly in possession of this strip at the beginning of the period at which we have to look. We have reached the view that the interested parties did not, at the relevant time, have such physical control, or “actual use or enjoyment, to more than a minimal extent” (c.f., per Lord Hamilton, Safeway Stores plc v Tesco Stores Limited) as to establish possession for the purposes of the statutory test. The appellants are accordingly entitled to rectification of the interested parties’ title.

The Title Position

[3] The appellants Philip Geoffrey Burton and Mrs Elisabeth Jane Burton acquired their property, Glasnick Smithy Croft, Kirkcowan, Newton Stewart, by a Disposition by Thomas Rodger and Jessie Rodger in their favour recorded in the General Register of Sasines for the County of Wigtown on 18 December 1990. The property, which continues to be held on this sasine title, comprises 10.64 acres (4.31 hectares) as delineated on a plan annexed to this Disposition. The plan shows a bounded rectangular area included in the title, very approximately 60 metres by 20 metres, on the east side (“the larger rectangular area”).

[4] The interested parties, John Hetherington and Mrs Hazel Hetherington, have a registered title, WGN7533, to their property, comprising some 82.4 hectares of land generally to the north of the appellants’ property. Said title was registered on 7 March 2012. The said property formed part of a registered title WGN4513, registered on 29 April 2004. These registered titles were based on the title in a Disposition of some 252 acres (102.9 hectares) by William Lorrain McKenzie in favour of Keith Hilditch recorded in the General Register of Sasines on 6 March 1989. Said Disposition of 1989 narrates that those subjects were shown within boundaries on a plan annexed thereto. This plan has not been made available. WGN4513 and WGN7533 each included a rectangular strip approximately 10 metres wide within and at the east end of the larger rectangular area in the appellants’ title. This is the disputed area. The interested parties now accept that WGN7533 is inaccurate to the extent that it includes the disputed area.

Procedure

[5] In 2012 the appellants applied to the Keeper for rectification of the interested parties’ title WGN7533 by removal of the disputed area. On 31 October 2012 the Keeper intimated that in the face of conflicting evidence of possession she was unable to adjudicate on this application. The appellants appealed to the Tribunal under Section 25 of the Act. The Keeper and the interested parties lodged Answers. The appeal was heard at an oral hearing on 27 and 28 November 2013, at which the Keeper was not present or represented. The appellants were represented by Mr MacDougall, advocate, instructed by Messrs Parabis Scotland. The interested parties were represented by Mr Upton, advocate, instructed by Messrs Williamson & Henry. Oral evidence was given by the appellant Mrs Elisabeth Burton and by the interested party John Hetherington. Parties also lodged written productions. The Tribunal did not in this case make any site inspection.

Authorities referred to

Harbinson v MacTaggart LTS/TW/2005/01-08, 9.12.2005
Tesco Stores Ltd v Keeper of Registers of Scotland 2001 SLT (Lands Tr) 23
Safeway Stores plc v Tesco Stores Ltd 2004 SC 29

The Facts

[6] On the evidence and submissions, the Tribunal found the following facts established.

[7] The appellants have lived at their property since they acquired it in 1990. It comprises principally a dwellinghouse and approximately triangular field, intersected by an old military road, on the north side of the main A75 road. A small wild or natural area approximately 60 metres by 20 metres (“the larger rectangular area”) adjoins the field at the east side of their property, separately delineated on their title plan but within their title. The larger rectangular area is bounded to the north and east by an old stone dyke and to the south by a burn running beside and parallel with the verge of the main road. The appellants’ field to the west has been secured from it by a stock proof fence with an unmarked opening. The disputed area is a strip 10 metres wide within the larger rectangular area, at its east end, with the dyke to the north and east and the burn to the south. At the beginning of 2012 there was no physical indication of a boundary between the disputed area and the rest of the larger rectangular area.

[8] The appellants, following advice from Scottish Natural Heritage, left all of the larger rectangular area, including the disputed area, in a natural state, with small growing willow trees, bramble and hawthorn bushes and bracken. They referred to it as their ‘secret garden’ into which they very occasionally took grandchildren or walked with their dog, taking access from their field through the opening in the fence. They occasionally cleared the burn or drain in order to stop it backing up to the east. They occasionally maintained the stone dyke, particularly on the east side, on the other side of which their neighbour kept sheep. The east end, where the disputed area is situated, was drier and more open, with fewer trees growing. The west boundary of the disputed area was not delineated on the ground.

[9] In early 2012 the interested parties acquired around 82 hectares of ground, then mainly consisting of open fields, generally to the north of the larger rectangular area, for the purpose of planting forestry. They granted a standard security over this property in favour of the Bank of Ireland. Their acquisition, and their registered title, like that of the sellers to them, included the disputed area. They obtained access to their land from Brockloch Farm, which is situated some distance to the north-west of the appellants’ property. The disputed area did not afford access, being physically separated from the main road by the stone dyke and the burn. The interested parties, however, planned to develop access via the disputed area in the future as this would in years to come facilitate the removal of timber.

[10] The interested parties took entry to their property in February 2012. Their agents informed the Rural Payments and Inspections Directorate of their purchase, and its extent including the disputed area, in March 2012. They let the fields to the north of the disputed area to a grazing tenant until they were in a position to start planting trees. The grazing tenant erected or reinforced a fence at the boundary with the larger rectangular area. There was also a shooting lease over the ground to the north of the disputed area. Mr Hetherington walked the land from time to time. The interested parties commenced digging ditches and planting trees in the field to the north of the disputed area in 2013.

[11] The interested parties own a woodland management business, Premier Woodlands Limited, which manages some 50 to 100 properties. The company’s forest manager, on instructions from Mr Hetherington, employs contractors to carry out works. The interested parties carried out some activity in the disputed area, through such contractors, in the summer of 2012. They obtained access by breaching the stone dyke on the north side, creating a gap through which quad bikes could be driven. This gap was kept closed during 2012 in order to maintain the grazing field stock proof, by placing two old farm gates across the gap on its north side. Mr Hetherington was present on one occasion, checking the measurement of 10 metres from the east boundary of the disputed area and supervising the positioning of tape to delineate the west boundary so as to ensure that works would not encroach on the neighbouring property. Contractors felled one small tree and cut down branches on another, which straddled the disputed area and the rest of the rectangular area, and also cut down shrubs within the disputed area. Bracken was sprayed on one or two occasions.

[12] On an occasion prior to this cutting of trees and shrubs, contractors with chainsaws had called at Mrs Burton’s house to ask if they could park their vehicle at the appellants’ field entrance. She asked where they would be cutting. They showed her a plan including the disputed area and told her that they were planning to cut down trees there. She said that she did not think they could do that as it was her property and asked them to leave. They said that they did not want a confrontation and agreed to leave. They left a card with Mr Hetherington’s or Premier Woodlands’ contact details. This was the first time the appellants were aware of any problem with their title to the disputed area.

[13] Thereafter, Mrs Burton took matters up, initially with Mr Hetherington and then with the Registers of Scotland. She endeavoured to make contact with Mr Hetherington, and after some delay spoke to him over the telephone. She told him about her title and that the disputed area was her piece of land. He said that as he had land registered deeds the land was his. Mrs Burton then found out about the process of rectification and went personally to the Registers with documentation. She there completed and submitted an application for rectification. She then telephoned to speak to Mr Hetherington again and left a message to the effect that she had applied for rectification. As she understood that the Keeper’s staff had agreed, upon seeing her title, that there was an overlap which required to be rectified, she assumed that that would be an end to the matter.

[14] Subsequently, Mr Burton noticed one day that trees had been cut down in the disputed area and that there was a red and white tape across the west side of it. A tree within the 10 metre strip had been cut down and also branches of one tree that would have been overhanging. The wall to the north had been taken down for the width of a gate, with stones lying on the ground. Bracken appeared to have died down very quickly. After contacting the Registers, the police and her house insurers, Mrs Burton wrote a letter dated 21 August to Mr Hetherington, e-mailed on 22 August as well as posted. In this letter, she referred to having advised him by telephone about the rectfication application and to noticing that he or his employees had been on the land subsequently causing damage to the wall, cutting down trees and shrubbery and spraying. She expected the damage to the wall to be repaired and also to be advised of the nature of the spraying product. She advised that she did not expect him to go onto the land again without consent until the title matter had been resolved. Mr Hetherington replied offering to call in to see her, confirming that his solicitor had received a letter from the Land Registry and indicating that he was not aware that any herbicide had been used in the spraying but would double check that and revert to her.

[15] The dates of these events in the summer of 2012, apart from the above correspondence, are uncertain.

[16] Mr Hetherington subsequently had a fence erected on the boundary between the disputed area and the rest of the larger rectangular area. This was removed by the appellants. That process was repeated once or twice before the end of October 2012.

Parties’ Submissions

[17] On the appellants’ behalf, Mr MacDougall referred first to the guidance by Lord Hamilton in Safeway v Tesco. In particular, the policy of the Act was not to disturb a proprietor in possession; there must be a qualitative assessment of the act or acts of possession; there must be actual use or enjoyment constituting a significant element of physical control; and the existence of physical features on the ground were of material importance. From the Tribunal’s opinion in the same case, Mr MacDougall took that there must be physical use and enjoyment of the land, and that any possessory acts carried out after knowledge of a challenge to the title should have less weight.

[18] Mr MacDougall submitted that on a qualitative assessment, the three possessory acts carried out by the interested parties came nowhere close to being sufficient. Firstly, they were carried out after the interested parties were made aware of the challenge to their title. Mrs Burton’s evidence of speaking to Mr Hetherington before any of the possessory acts were carried out should be preferred. The letter of 21 August showed the possessory acts to be ‘subsequent’. Possessory acts after acquiring knowledge of the challenge would not carry much weight, and after the application for rectification would be irrelevant. If Mr Hetherington knew of the mistake and deliberately set up attempts at possession with an eye to the statutory provisions, less weight should be accorded to these actings; and if the interested parties knew of the challenge to their title, little weight should be attached to them.

[19] Secondly, the existence of the stone dyke separating the properties was relevant. Again, Mrs Burton’s evidence should be preferred to that of Mr Hetherington. It had not been put to her that there was an opening in the wall at the time when the interested parties purchased their land. If and when an opening was created, it was not used as regular access to the disputed area. In any event, the wall and fence in combination constituted a physical feature separating the larger rectangular area from the interested parties’ land. Even if the dyke was not intact, little significance could be attached to the possessory acts.

[20] Thirdly, the interested parties’ actings in any event did not amount to actual use and enjoyment of the area in dispute, even if the interested parties did not know of the challenge to their title or even if the Tribunal rejected the proposition that there was a physical feature between the properties. Mrs Burton had given evidence of the type of use and enjoyment required. The interested parties had not derived enjoyment from their actings, or at least not to more than a minimal extent. Looking to Mr and Mrs Hetherington’s position, it could not be said that they would be disturbed (as opposed to financially prejudiced) by rectification: the test of ‘possession’, as opposed to ‘prejudice’, did not include financial considerations.

[21] Mr MacDougall also moved for expenses, to include sanction for junior counsel.

[22] On behalf of the interested parties, Mr Upton first referred to the nature of the disputed subjects, described by Mrs Burton as ‘just a piece of wild ground’. He then submitted that the appellants had perilled their case on proof of their claim to possession. What was to be looked for as possessory acts depended on the character of the ground, and the appellants’ own case about possession indicated the minimal extent of what was required, so that the interested parties’ actings more than sufficed for the inference of possession by them. There was no reason to believe that anyone had ever done more on the disputed subjects than the interested parties did in 2012. The issue had to be looked at over an appropriate period leading up to the Keeper’s decision on 31 October 2012. Previous possession was irrelevant.

[23] Mr Upton submitted that an averment by the interested parties that it had been represented to them by the previous registered owner had occupied all the land contained in the title WGN4513 was not in dispute. He then submitted (which was not disputed) that acting through a company, or by contractors on behalf of the interested parties, were in law the actions of the interested parties.

[24] Mr Upton next referred to the interested parties’ activities on the rest of the subjects in their title (c.f., per, Lord Hamilton, Safeway v Tesco, at para 84; Tribunal, at 36). Stock fences had been checked and put into order. Bracken had been sprayed on the new property generally. The subjects had in 2012 been used as a whole to let them for grazing, under an unwritten lease. The shooting rights over the subjects as a whole had been let. In 2013 trees had been planted on the subjects as a whole. It was important to determine the unit which was being possessed and the physical relationship of the disputed subjects to any other heritage of the opposing parties. Part of the physical definition of the subjects was the gateway, to which Mr Hetherington had spoken, in their northern boundary dyke. That was consistent with treatment as a single unit in the Register plan. The physical distinction of the more open ground of the disputed area from the more thickly wooded ground of the rest of the larger rectangular area was consistent with their treatment as separate and distinct units.

[25] Mr Upton further submitted that there was evidence to suggest that the botanical distinction from the rest of the larger rectangular area may not have been the only one, because: since at least 2004 the registered titles had treated them as distinct; it was common (although not necessary) for legal boundaries to follow physical features or boundaries; there was therefore a basis for a possible inference that the responsible conveyancers (or Registers staff) had in mind the existence of a physical boundary; the red boundary line on the Ordnance plan forming part of the land certificate in issue was overlaid on top of a broken or discontinuous black line (dykes and fences being marked on Ordnance maps with black lines, and the Registry not using broken lines), and there was a similar line on the plan forming part of WGN4513 dating from not later than 2 May 2006; that line could indicate that the draftsman had information as to a boundary of the disputed area, the inference being of the existence of a fence; and that inference was consistent with the remains of old wire left against the northern dyke at about the right distance from the from the eastern side of the disputed area. Combined with the pre-existing gateway into the field to the north, these grounds for believing that there may in the past have been some kind of barrier between the disputed area and the appellants’ undisputed ground were relevant. This was consistent with viewing the disputed subjects as being an extension of the ground to the north, as a matter both of physical accessibility and in relation to regarding the interested party’s activity on the disputed area as an extension of their undisputed activities as possessors of ground to the north. The reasons for treating the disputed area as part of the same unit as the ground to the north were reasons for treating the interested parties’ possessory acts in respect of their entire holding as possession of the disputed area.

[26] Dealing with the appellants’ claim to possession, Mr Upton first highlighted their lack of averments of any specific conduct or activity on any land: they had no record for the case which they averred they had to make. Their averment based on ownership of the wall, even if correct, indicated nothing relevant about possession (c.f. Tribunal in Tesco v Keeper, at 36). The evidence for any actual physical acts before the interested parties came on the scene was slight: the area was “just a piece of wild ground”, and possessory acts minimal, leaving no basis for the appellants claiming to have used or possessed it. There was no admissible evidence of any possessory acts by the appellants after the interested parties’ activities began, and the weight of any such acts was in any event undermined by the ‘tennis-match’ principle (Tribunal in Tesco at 28). The relationship between their land and the disputed area was tenuous: there was no discernible path or way through the appellants’ copse to the disputed area. The evidence did not establish possession by the appellants.

[27] Mr Upton then addressed the interested parties’ activities on the disputed subjects, from the spring of 2012 onwards. It did not take much to take possession of a piece of wild ground. They had cut down the largest tree, branches of other trees and shrubs before 21 August 2012. They had had bracken sprayed “in about May and June 2012” in the disputed area, as elsewhere on their ground. They had delineated the western boundary with tape in June 2012, and “not long after” had a fence erected. Although this was removed and re-erected, actings should not be dismissed simply on the grounds that they were contrived to assert possession (Tribunal in Tesco, at 36). If the interested parties had attempted to knock down a section of wall (as Mrs Burton asserted, against Mr Hetherington’s denial) that would add to the list of their activities. They had also taken access on a quad bike. In relation to the suggestion that the actions followed indication of the appellants’ challenge, Mrs Burton had not been able to say exactly when they happened. They had also in March 2012 represented the extent of the land acquired by them, including the disputed area, to the Rural Payments and Inspections Directorate.

[28] Finally, Mr Upton submitted that expenses should follow success.

Tribunal’s Consideration

[29] This case illustrates the difficulty in applying the decisive test of possession under the 1979 Act in the case of overlapping titles where the area in dispute is of such a character that minimal physical possessory acts are to be expected.

[30] Hard as it may seem for persons in the position of the appellants, who clearly bought land including the disputed subjects and who might be deprived of it because of a subsequent, in this case unexplained, error (in which they were in no way involved), the policy of the Act if the interested parties were in possession at the relevant time is to refuse rectification, albeit with the possibility of a monetary remedy. The interested parties were also not involved in the error, and also clearly bought this land. Whether or not they knew about the error, they are, in relation to this issue, in good faith because they are entitled to rely on the faith of the Register. (As it happens, it is pure speculation, as there was no evidence on this, whether they had any knowledge of the problem.) It is also not in dispute, and very clear in this case, that the interested parties would be prejudiced by rectification.

[31] Cases on this issue of possession present widely differing circumstances, but authoritative guidance on the approach to be taken was given by the Inner House in Safeway v Tesco, as parties recognised in their submissions. In particular, Lord Hamilton, with whose comments Lord Kingarth aligned himself, gave important guidance in various passages from Paras [74] to [84] of his Opinion. His Lordship first drew on observations of Lord President Rodger in Kaur v Singh, and noted that possession had a wide range of meanings. Regard had to be had to the particular context. It was dangerous to draw inexact analogies with other contexts, for example in relation to the significance of the registered proprietors’ possession of the balance of the subjects in their title. The terms of the statute had provided little assistance as to what precisely was meant by ‘a proprietor in possession’. His Lordship continued:-

“[77] In my view it is necessary, in the circumstances of this case, to make some attempt to divine what the legislature had in mind by a proprietor ‘in possession’ who ex hypothesi does not ‘truly’ have the right accorded to him on the register but whose possession (and registered proprietorship) is nonetheless, as a matter of policy, not to be disturbed. 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.

“[78] In many cases it may be a nice question whether a registered proprietor is ‘in possession’ in that sense. The resolution of that question will turn on the particular circumstances; the issue may become one of fact and degree. Because ‘possession’ involves the dual requirements of ‘an act of the body’ (by physical detention or holding) and ‘an act of the mind’ (for one’s own use, otherwise than in circumstances which, in the case of moveables, would infer theft) – Stair, Institutions II.1.17 – these elements, which are interrelated, will both be relevant to the resolution of the question. ‘Possession’ in the relevant sense is ‘the having or holding a thing within the possessor’s control, with the intention of holding it as his own property …’ (Rankine, Land Ownership pp 3-4).

“[80] There was some discussion before us as to the appropriate time at which the issue of whether or not Safeway was ‘in possession’ fell to be determined. Although the Keeper was alerted to the issue from about September 1998 and appears in the succeeding months to have reached certain views and made certain decisions, the formal application to him by Tesco for rectification of Safeway’s title was made, according to the pleadings, on 5 October 1999. The Keeper’s decision not to rectify it was communicated by letter dated 29 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.”

[32] His Lordship referred to the concept of a ‘tennis match’, i.e. process of assertion and counter-assertion once a dispute has emerged, and to one particular act by the ‘true owners’ (in that case, Tesco) “prior to the opening of the match”, along with issues in that case as to the significance of certain actings by the registered proprietors, Safeway, during this period before the ‘match’ began. Then, in rejecting a ground of appeal related to the Tribunal’s consideration of acts of possession by the ‘true owner;’ as well as by the registered proprietor, his lordship said at [83]:-

“While inevitably the disputant positions of Safeway and Tesco (including acts arguably of possession and of counter-possession) had to be considered, on a fair reading of the Tribunal’s decision it properly identified the issue on this aspect of the case as being whether Safeway was ‘in possession’ …”

[33] On the significance of possession of other parts of the registered proprietors’ subjects, his Lordship said at [84]:-

“… the Tribunal did not, in my view, err in law in relation to the appropriate focus for attention in the matter of possession. It rightly regarded the proper focus as being on the land itself and directed its consideration on the evidence ‘bearing directly or indirectly on occupation’ of the overlap area. That approach did not ignore consideration of activity occurring beyond the confines of the overlap area itself. Where the dispute concerns whether a person is in possession of part of larger subjects which he owns, it will be relevant to take into account not only the nature of the disputed part (including such opportunities as that nature may afford for possessory acts on it or in respect of it) but also how that disputed part relates to the subjects as a whole (including possessory acts on the balance of the subjects) …

Where that issue concerns whether or not a proprietor has been in possession of subjects extending beyond their ‘true’ boundary, the focus will inevitably and properly be on his possession (if any) of the area beyond the ‘true’ boundary. Such a focus will not ignore the subjects as a whole nor how their enjoyment and use relates to the extension area; but activities on the balance of the subjects which have no apparent bearing on the extension area can be of little, if any, significance.”

[34] Lord Osborne, at Para [60] said a little bit more about the issue of competition between the parties:-

“In this connection it has to be recognised that there exists a principle of law that, save for a situation in which joint possession by two or more parties is involved, no more than one person may be in possession of the same land at the same time.”

His Lordship referred in this connection to Stair’s Institutions, at II.1.20 and the Stair Memorial Encyclopedia, at Vol 18, para 118, and continued:-

“In the light of this principle, it appears to me inevitable that the Tribunal, in its treatment of the issue of possession, should have looked at the whole circumstances, including the position of the respondents as well as that of the appellants. As was pointed out in the narrative of facts found by the tribunal, certain acts of a possessory nature were carried out by the respondents on the overlap area. In my view, it was plainly appropriate for the Tribunal to examine those circumstances in relation to the question whether the appellants had demonstrated that they were, at the material time, in possession of that area.”

[35] Care perhaps requires to be taken in looking beyond Lord Hamilton’s guidance, with which Lord Kingarth agreed, but all three judges appear to have placed significance in that case on possessory actings by the ‘true owner’. While it would be wrong to apply an approach on the basis of a ‘true owner’ having established prescriptive possession or been in possession for much longer – that is not the issue - it seems to us entirely appropriate in a case, like the present, in which the registered proprietor is entering on land for the first time (and does not suggest that his predecessor who had also obtained a registered title to the disputed area had any possession of it), to consider the position of the ‘true owner’ in relation to possession at the outset.

[36] We have highlighted this aspect because Mr Upton raised two legal issues in relation to the appellants’ pleadings in relation to their possession. Firstly, he argued that the appellants had perilled their position on averments about their own possession. It is the case that the appellants make averments about their own possession and specifically plead that rectification could only take place if it was accepted that they were in possession of the disputed area. That is an unfortunate position which tends to divert attention from the correct issue as to whether the interested parties were in possession. However, the appellants also made clear in the pleadings their contention that the actings of the interested parties were not sufficient to establish possession, specifically pleading, with some specification, that “the interested parties have never had possession”. In our view, the appellants did enough to give clear notice of their contention that the interested parties did not satisfy the statutory test, while also claiming to have been in possession themselves, which, as we have seen, is a relevant consideration.

[37] Secondly, in relation to specification and fair notice of their averments as to their own possession, Mr Upton objected to the appellants leading any evidence as to that as they had not in fact given any specification, beyond a suggestion that:

“the appellants’ wall of several years standing is sufficient to establish that they have use and enjoyment of the disputed area”.

In ruling on that objection, we felt it appropriate to distinguish between the period before the interested parties entered the subjects and the period after that. As regards the earlier period, the appellants averred:

“Up until July 2012 the appellants were unquestionably in possession of the area in dispute.”

The interested parties’ response to that was ‘not known and not admitted’, without any suggestion of any competing possession by anyone else or that the land had not, before their actings, been possessed by anyone. In that situation, it seemed to us legitimate, and in no way unfair to the interested parties, for the appellants to describe their position in relation to the disputed area before the interested parties’ actings.

[38] On the other hand, as regards the period after the interested parties entered the land, there being averments by both parties about the interested parties’ actings, we did consider it incumbent on the appellants to give notice of any suggestion of any specific actings on their part on which reliance was to be placed. We upheld Mr Upton’s objection to that extent.

[39] We can agree with Mr Upton that “previous possession” by the appellants would not be directly relevant, but possession established by physical acts may be continued animo and we cannot accept that such possession by the appellants at the outset of the actings relied on by the interested parties is irrelevant.

[40] We do agree with Mr Upton (contrary to Mr MacDougall’s submission) that there is no specific point in time, such as the date of the application for rectification (a date with which we were in any event not provided), after which possessory acts by the registered proprietors are irrelevant. That seems inconsistent with a qualitative assessment of their actings in the circumstances prevailing around the time of the rectification claim.

[41] We also did not consider that Mr MacDougall’s attempt to separate out financial considerations as relevant to ‘prejudice’ but not to ‘possession’ adds anything to the approach to be taken. We prefer to consider the positive extent of the interested parties’ possessory actings.

[42] In considering some disputed, and some uncertain, areas of fact, we require to note that the evidence led on both sides was unsatisfactory. This explains the lack of detail, particularly about dates, in our factual findings. Only Mrs Burton and Mr Hetherington gave evidence, and the documentary evidence, including numerous photographs, mostly added little on the material issue. The photographs were apparently only taken after the dispute arose. We have been wary of photographs which may show subsequent activity, particularly at the gap or opening in the wall.

[43] Mrs Burton was quite vague about dates, suggesting that she had some further record, without which she could not be certain about dates, but which was not produced. Mr Hetherington was slightly less vague, but by no means clear, about dates. He too had no clear record. It must also be said that he was mostly speaking about events at third hand. This is because, while he and Mrs Hetherington are the proprietors, they operate through a forestry company, where, he told us, a forestry manager instructed contractors to do the work which constituted the actings relied on by the interested parties. We have no difficulty in this case with the idea that actings by the company or contractors might found relevant possession, but insofar as the timing and sequence of events were in issue, the interested parties’ evidence is open to the comment that it simply did not come from the persons directly involved. None of the persons involved in carrying out the possessory acts, the sufficiency of which was clearly put in issue by the appellants, gave evidence, nor did the interested party produce any form of documentary record, which might have been expected in a business venture. We do accept that Mr Hetherington occasionally attended at the subjects, but his evidence as to when or how often, or even the extent to which he was present in the disputed area, which forms a tiny proportion of the title, was also vague and unsupported.

[44] Looking first at the physical features at the subjects, we are of the clear view that these are naturally part of the larger rectangular area of natural habitat, the remaining part of which is clearly within the appellants’ ownership and from which the disputed area was not differentiated on the ground. The boundary between the larger area and the interested parties’ land to the north is an old, well established stone dyke; between it and another owner’s land to the east, a continuation of the dyke and a wooden fence over the burn; between it and the road, the burn; and between it and the rest of the appellants’ land, a stock proof fence, in which there is an unmarked opening. The natural access to the disputed area was from the remaining part of this rectangular area, from which it was not separated in any way. We accept Mrs Burton’s evidence that that was how access was taken, although this was obviously not a frequent event and there was no discernible path through the rectangular area. There was no evidence of access having been taken before 2012 from the field to the north. Up until the time when the interested parties took entry and started their actings on the disputed area, the larger rectangular area, including the disputed area, was simply kept by the appellants as a natural area, with some, although probably minimal, maintenance and only very occasional recreational visits. The appellants had control of the disputed area. The disputed area is of a different character from the interested parties’ land to the north. In 2012, the adjoining area was a field subject to a grazing let and shooting rights, there being no suggestion that either of these was exercised over the disputed area.

[45] The interested parties countered that view of the subjects in three ways. Firstly, they pointed to the fact that, even before they cut anything down, the disputed area was somewhat more open, with less trees growing on it, than the rest of the rectangular area. That was not disputed – there was mention in the evidence of variation in the flora according to the bogginess of the ground - but does not, we think, alter the basic picture. This “botanical distinction”, as Mr Upton characterised it, was in our view of a different order from the physical and functional distinctions between the disputed area and the rest of the interested parties’ land.

[46] Secondly, Mr Hetherington suggested in evidence that there was a gateway in the stone dyke separating the disputed area from the rest of the interested party’s land. Again, no other witness supported this assertion. Mrs Burton spoke to the wall having been broken down by the interested parties’ contractors, the clear implication being that there was no gateway in it. The interested parties’ own averment was that there was “a broken down dyke … which has not been any impediment” (to their access). Mrs Burton said that she maintained the walls, although the emphasis did seem to be on the wall on the east boundary, where she was aware of that neighbour’s sheep being in the adjoining field. Photographs reveal two old gates placed beside a gap in the wall at the point referred to by Mr Hetherington. It was not clear who had placed the gates there, although we see no reason to doubt Mr Hetherington’s evidence that they were there when he first visited the location. The grazing tenant had put up stock proof fences along his side of the wall. The fence wire can be seen in the photos referred to be interwoven with the gates which were placed behind the wall. That is not the same as a gateway. Mr Hetherington sought to support his evidence from photographs which did not seem to us to show a gateway and in any event were not clearly dated. There was no evidence of the existence of any gateway before 2012, nor was such put to Mrs Burton in cross-examination, the nearest to that being a suggestion that a gap had been created and partly filled up. Further, there was no evidence of any track or path leading to or from this point in the wall, nor of any access or egress at this point before the interested parties’ contractors. On the evidence, it seems quite likely that the appellants’ maintenance of the wall on the north boundary was somewhat intermittent. There was evidence of the activities of wild cows. The wall may well at the relevant time not have been in a very good state and might have had a visible weak point or gap. There would then not be much of an obstacle to the interested parties’ contractors entering the disputed area on quad bikes. In other words, we can accept the interested parties’ averment that the wall was easily breached, but not Mr Hetherington’s unsupported evidence of the existence of a gateway.

[47] Even if there was such a gateway in the wall, the relationship of the disputed area to the rest of the larger rectangular area in the appellants’ title, from which it was not in any way separated on the ground, would still in our opinion be far stronger. That brings us to Mr Upton’s third submission on the physical features. He sought to persuade us that there were, as it is put in the written submission, “grounds for believing that there may in the past have been some kind of barrier between the disputed subjects and the appellants’ undisputed ground”. With all due respect to Mr Upton, the grounds advanced in support of this appeared to us to be an edifice built of straw. Reliance was placed on the admittedly inaccurate registered titles, because there appear to be broken or discontinuous lines under the red boundary line between the disputed area and the rest of the rectangular area on the underlying Ordnance plans. That was said to provide the basis for a “possible inference” that the responsible conveyancers or the Registers staff “had in mind” the existence of some physical boundary between them. This “could indicate that the draftsman of the map had information to the effect that that boundary of the disputed subjects was reflected by a linear, physical feature on the ground.” The delineation of this boundary on these Land Register plans, as produced to us, on a scale of 1:10,000, is tiny, around a millimetre in the copy referred to. No-one involved in the preparation of such deeds or plans gave evidence. Nor was there was any attempt at expert analysis of this material or any suggested explanation of the absence of such a line on the appellants’ smaller scale title plan, which is accepted to be accurate as to the boundary position. There was one adminicle of evidence consistent with the remains of an old fence at this position, viz a photograph showing an old coil of barbed wire approximately at the right position beside the wall. No other evidence was led as to the existence in the past of any physical marking of the boundary, and Mr Upton very properly accepted that he was in no position to put that suggestion to Mrs Burton, the ‘true owner’ who has resided in the vicinity for more than 20 years. Mr Hetherington told us that in preparing instructions to be relayed to the contractors who were to cut down trees, he measured out the 10 metre width which has been posited for the disputed area and delineated the boundary with tape. This passed through the middle of a tree. Although Mr Upton elicited from Mrs Burton in cross-examination that a broken line on a map might indicate a physical boundary, this material falls some considerable way short of persuading us that there was at some time such a physical boundary.

[48] Even if we were to accept the possibility, we would need to consider when such a fence might have been present and why it was no longer there. We reject this possible inference of a physical boundary affecting the relationship of the disputed area to the rest of the interested parties’ land at any material time.

[49] We do not accept Mr Upton’s submission that the appellants did not, in the pleadings, dispute the interested parties’ averment that it had been represented to them that the previous registered owner had occupied all the land in their registered title. We cannot read such acceptance into the relevant section of the appellants’ appeal (“2. Interest of Appellants in these subjects”):-

“The Appellants have title to an area of land marked on Mr and Mrs Hetherington’s land certificate Title No WGN7533. The Appellants have been proprietors in possession of that area of land for several years by virtue of the sasine title and deed plan attached. Mr and Mrs Hetherington have never been in possession of the area of land in dispute.”

To the contrary, we could find no indication in any of the evidence, either oral or documentary, of the extent, if any, of possession by the previous owners of the property. There was no evidence of anyone other than the appellants and their family setting foot in the disputed area before the interested parties came on the scene. The appellants were then in our opinion clearly in control and possession of it along with the rest of the rectangular area, in accordance with the ‘true’ title. The suggestion that no-one had been in such possession of the disputed area or – which Mr Upton accepted would follow – any of the larger rectangular area, seems to us to be unfounded.

[50] We turn then to the interested parties’ activity. We accept that the interested parties had possession of the rest of the property which they had acquired, or at least of the immediately adjoining land. They also intended in the future to make a functional connection with the disputed area. However, the actual use of the adjoining land in 2012 was by a grazing tenant, and there was also a shooting tenancy. Whatever the legal extent of these leases there was no evidence that either of these uses extended into the disputed area. The adjoining field was fenced to keep stock in. Physical access, perhaps by taking advantage of the broken down dyke, was clearly possible, but the character and use of the rest of the land was quite different. On the view which we have indicated of the physical features, we are unable to see the disputed area as part of a unit with the rest of the interested parties’ land. To the contrary, it was to our mind naturally part of the larger rectangular area. This is in our opinion a case in which, as in Safeway, the possessory acts on the land within the interested parties’ ‘true boundary’ throws no light on possession of the disputed area outside it.

[51] However, this case differs from Safeway in relation to activity in the disputed area. In that case, upon the correct view as to certain actings by Safeway as registered proprietors, there was no relevant activity by them in the disputed area, at least until a very late stage in the ‘tennis match’ when they removed and re-positioned Tesco’s marker posts. In this case, the interested parties as registered proprietors claim to have carried out possessory actings at a much earlier stage.

[52] The actings referred to by the interested parties fell into three categories – cutting down some trees, spraying bracken and delineating the boundary between the disputed area and the rest of the rectangular area. The delineation of the boundary was initially by putting up tape to ensure that there was no cutting or spraying over the boundary, and latterly by erection of a fence, only for it to be removed by the appellants, a process repeated on two or three occasions. Mr Hetherington was really not very clear as to whether the bracken had been sprayed on one or two occasions, his final view being at least once and maybe twice. As Mr Upton pointed out, if Mr Hetherington’s evidence of a gateway is not accepted and Mrs Burton’s allegation that the interested parties knocked down, or attempted to knock down, the wall, is accepted, this is another activity to be considered. Although the factual position about that is by no means clear, we can accept that there was some activity creating a passable gap in the wall for quad bikes and that the interested parties gained access in this way directly from the rest of their land.

[53] In our view, on the evidence, all of this activity involves the interested parties coming into the disputed area on, probably, three occasions when, after removing some stones from the dyke, they strung up some tape to delineate the boundary, cut down one small willow tree and branches of others, and some shrubs, and once or twice sprayed the bracken. There was some dispute in evidence as to whether the contractors cleared away the resultant brash, but this was not directly spoken to and was apparently contradicted by photos which were put to Mrs Burton in cross-examination, which she said showed such activity on her part with her strimmer.

[54] Mr Hetherington said the tree and shrub cutting would have taken about half a day, the bracken spraying one to two hours (possibly twice), and the erection of a fence half a day.

[55] This brings us to the timing of the interested parties’ activity and the sequence of events in relation to the dispute. There are two clear dates: February/March 2012, when the interested parties became proprietors (entry – 28 February; registration of title – 7 March); and 21 August 2012, when Mrs Burton sent a letter to Mr Hetherington confirming having advised him that they had started the process of applying for rectification and complaining of the actings on or on behalf of the interested parties in the disputed area.

[56] Beyond that, there is vagueness on both sides about dates, although we did not understand it to be suggested in evidence that the interested parties’ actual activities started before the early summer. Mr Hetherington said that he was present when the tapes were put up and thought that this was almost certainly in May. He thought that the tree and shrub cutting was in June, and that the bracken spraying, which may have taken place more than once, was completed before July.

[57] Mrs Burton was far more vague about dates. However, we accept her evidence that she objected to the activity of felling trees before it happened. There was a somewhat vague suggestion put to her in cross-examination that she spoke to contractors on another occasion, but her account of first learning of a problem about this area of land when contractors intending to fell trees came to her door, and of these contractors learning of her claim to own the disputed area and therefore not proceeding to carry out their instructions and going away, appeared to us credible.

[58] The actual sequence and timing of communications between Mrs Burton and Mr Hetherington was not at all clearly spoken to by either. As can be seen from the letter of 21 August, Mrs Burton understood that the tree and shrub cutting, and bracken spraying, followed after she had spoken at least once, probably twice, to Mr Hetherington, and after she had submitted the application for rectification. We can accept that this is what she thought, but it does not seem to us to be established by the evidence. It is in our view perfectly possible that some or all of that work had been carried out some time before it was noticed by Mr Burton. It might seem that Mr and Mrs Burton, being resident close by, would have kept a close eye after they were aware of Mr Hetherington’s claim, but on questioning by the Tribunal Mrs Burton did not say that either she or her husband did that. Rather, they appear to have assumed that nothing would happen on the ground until the issue of rectification was resolved. We think that we can accept Mr Hetherington’s evidence that after a telephone conversation with Mrs Burton, he instructed that work should stop. This, he said, happened around the end of July or early August. We do not accept the suggestion that this is inconsistent with his subsequently instructing the erection and re-erection of a fence, because that can be seen as different from actual work on the land. However, there was more than one telephone conversation and Mr Hetherington may well have waited until after the second conversation, in which he was told that the appellants had initiated the rectification process.

[59] We can broadly accept that the interested parties’ activities in the disputed area took place over a somewhat longer period than Mrs Burton implied. Over a period of up to three months before 21 August, they went onto the ground around three times, delineating the boundary, cutting trees and shrubs and spraying bracken. We can, however, accept Mrs Burton’s evidence that the tape, rather than fencing, was in place when she and her husband discovered the activity in the disputed area and wrote the letter of 21 August. She was clear that that discovery included the red and white tape. The fence is not mentioned in the letter. So we proceed on the view that no fence was erected until after the interested parties were well and truly aware of the appellants’ claim.

[60] At least part of the activity, the cutting of trees and shrubs, occurred after the interested party’s contractors were told by Mrs Burton that the appellants owned the land. On the evidence – or lack of it on the interested party’s part – the fact that the tree-felling subsequently took place probably means that they reported back and were at some stage instructed to proceed. In any event if the interested party can rely on actings of contractors, an assertion by the ‘true owner’ to those contractors as to ownership of the disputed area would seem relevant. The appellants had thus started to make the interested party aware of their claim. There may have been some delay after that, but that might have been caused by delay, for whatever reason, in contacting Mr Hetherington.

[61] Applying the authoritative guidance to which we referred earlier, we think that the position at the material time is as follows. The appellants had had possession and use of the disputed area for the purpose intended by them as owners. The interested parties then came onto the land on a small number of occasions. Their possession, through tenants and occasional visits by Mr Hetherington, of the rest of their property, does not in this case advance their claim. The repeated erection and removal of a fence at the boundary, sometime after the interested parties were aware of the appellants’ application to rectify, does not establish control by the interested parties and seems to us to be the sort of tit-for-tat activity which has been characterised as a ‘tennis match’. In our view that activity by the interested parties does not in this case advance their claim. That leaves something around one day’s work in total, starting to prepare the ground for its eventual intended use by them. It might not take much to take control of wild ground possessed by no-one, but that was not the position here, as the appellants had been in control of this ground. The appellants made their objection and claim of ownership when they became aware of this activity and, in our view, made their application to rectify in reasonable time. Although the appellants have not been able to show continuing use of the disputed area after the interested parties commenced their activities, the interested parties’ attempt to establish control over the area was in our view incomplete. They had not actually obtained any meaningful use or enjoyment of it.

[62] Our conclusion is that in these circumstances, while the interested parties clearly intended to hold the land as their own property, they did not, as a matter of fact and degree, have the requisite control over it, nor did they have actual use and enjoyment of the land to a more than minimal extent. They were not ‘a proprietor in possession’ within the meaning of Section 9 of the Act.

[63] It follows that the appellants are entitled to rectification and their appeal succeeds.

[64] Following the procedure normally applicable in these cases, we shall not make a formal rectification order and shall leave this to the Keeper, unless any difficulty arises with that course.

[65] In relation to expenses, Mr MacDougall moved for these. Mr Upton submitted that expenses should follow success. It is clear, therefore, that the appellants are entitled to their expenses as against the interested parties. We also did not understand Mr Upton to oppose sanction for junior counsel, which we in any event would consider appropriate and which we shall grant.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 30 January 2014

Neil M Tainsh – Clerk to the Tribunal