OPINION

Colin Gray v The Keeper of the Registers of Scotland and Perran John Horrell and another

[1] This is an appeal by Mr Gray against a decision of the Keeper refusing to rectify his neighbours’ title despite a clear and admitted error giving them a piece of his land. It is convenient in this case to refer to Mr Gray and his wife as the “appellants” although the title to their house at Woodlands Park, Woodlands of Durris, is now held by Mr Gray himself and, strictly he is sole appellant. It is also convenient to refer to the neighbours, Mr and Mrs Horrell, as the “defenders” as this identifies their role in seeking to defend their title more clearly than the formal description of “interested parties” used in the process.

[2] The estate at Woodlands Park was formerly the arboretum of Durris House. There are about 14 residential properties each with an acre of ground or more. The appellants’ house at No. 7 sits in a cultivated area of lawn and garden surrounded by mature woodland. The pattern is similar to other houses on the estate. The general practice is to have no formal boundary between the plots. When Mr and Mrs Horrell bought the adjacent property at No. 8, the Keeper of the Registers made a gross error in their title plan. The reason for it was never explained to us and is irrelevant to the present case as there was no suggestion that it was in any way attributable to the defenders. They became proprietors of a triangular area of woodland of some 0.6 acres in extent which had formerly been part of the appellants’ subjects. When the appellants found out about this they asked the Keeper to rectify the title of No. 8 by removing the triangle. The Keeper agreed that there had been a mistake. She proposed to rectify the title. However, in terms of the relevant statute this could only be done if the defenders either agreed or if they were not entitled to be regarded as being in possession of the ground in question. The defenders eventually agreed to rectification of a small area along the western boundary of the disputed triangle but contended that they had relied on their title plan as showing what they owned and had taken possession of the rest of the disputed area.

[3] At the hearing on the 11 to 13 August 2014 the appellants were represented by Mr Robert Howie QC and the defenders by Mr Kenneth MacDonald, solicitor. Mr Howie led evidence from Mr and Mrs Gray and from Mr Nigel Astell, a tree expert. Mr MacDonald led the evidence of Mr Horrell.

Authorities

Adam v Thorntons WS 2005 1 S.C. 30
Burr and Another v The Keeper of The Registers of Scotland and Carl Anderson LTS/LR/2008/09 - 12 November 2010
Burton v Keeper of the Registers of Scotland LTS/LR/2013
Kaur v Singh (no 2) 2000 S.L.T.1323
John and Joanna McCoach v The Keeper of the Registers of Scotland and City of Edinburgh Council LTS/LR/2006/03 - 19 December 2008
M R S Hamilton Ltd v Keeper of the Registers of Scotland 2000 S.C. 271
Nicol v Keeper of Registers of Scotland and others LTS/LR/2012/02 - 23 May 2013
Rivendale v Keeper of the Registers of Scotland and Clark LTS/LR/2012/01 - 30 October 2013
Rodgers (Builders) Ltd v Fawdry 1950 S.C. 483
Safeway Stores Plc v Tesco Stores Limited 2004 S.L.T.701
Short’s Trustee v Keeper of the Registers of Scotland 1994 S.C.122
Short’s Trustee v Keeper of the Registers of Scotland 1993 S.L.T.1291
Tesco Stores Ltd v Safeway Stores Ltd 2001 S.L.T. (Lands Tr) 23

Statutory material

Land Registration (Scotland) Act 1979

[4] The background to the statutory provisions was fully discussed by both Lord Coulsfield and Lord Hope in Shorts Trustee v The Keeper: see from page 126 and from 137. We need not repeat that material. It was not disputed that the critical provision was to be found in sec 9. That section makes provision for rectification of a title sheet but sub(3) provides that : “If rectification … would prejudice a proprietor in possession [ rectification is only permissible in certain circumstances]. None of the specified circumstances was said to arise in the present case. It was accepted that the defenders were proprietors of the land in dispute and that rectification to take that land from their title would be to their prejudice. The dispute was whether the defenders were entitled to be regarded as “in possession”. In relation to the proper construction of “proprietor in possession” reference was made to one of the exceptional circumstances, namely where “the inaccuracy has been caused wholly or substantially by the fraud or carelessness of the proprietor in possession”: subsec (3)(a)(iii). We return to this below.

It may be noted for completeness that some of the problems and apparent unfairness arising from the approach taken in the 1979 Act and illustrated by the present case have been addressed by the provisions of the Land Registration etc. (Scotland) Act 2012 which is not yet in force.

Factual background

[5] The parties were agreed that all copy documents could be treated as principals to be read as written by those by whom they bear to have been written and to those to whom they bear to be addressed, at or about the dates they bear. Although much time was spent on analysis of the communings between parties and solicitors, we are satisfied that most of this has little bearing on the substantive issue of possession. This raised various difficulties and we look at the detail in the Discussion below. Some description of the basic background is, however, required to put matters in context. The detail of the communings can be found from the productions if properly required.

[6] For convenience we have simplified the description to refer to boundaries as if the subjects were rectangular and orientated by reference to the cardinal directions although in fact the original title to No 8 was polygonal and the difference in the shape of the original No 8 on its Sasine title and the shape shown in the title plan was relied on as a factor of some importance by the appellants.

[7] It is convenient at this point to describe what came to be called the “disputed triangle”. The triangle was ultimately defined by reference to an area plotted by Mr Gray and his surveyors. A point “A” at the south west of the triangle was situated on a wall or ha-ha wall which was the south boundary of the parties properties at a point where that wall was joined at right angles by a fence. This fence lay entirely to the south of the wall and separated two fields to the south of the properties. It marked the west boundary of a 6 acre field included in the defenders’ purchase. It appeared that the Keeper may have used that junction erroneously as marking one end of the boundary line of the house subjects. The point “C” was on that wall to the east of “A” and was the point identified by Mr Gray as marking the edge of his property as defined by his Sasine title. It was identified by a measurement of 87.5 metres from the fixed point in the centre of the stream which was his western boundary. The north point of the triangle was “F”. There had been a doubt as to the precise line of the defenders original Sasine boundary on the line described as C-F and both parties had had surveys to determine this. Fortunately they were able to agree the precise line of rectification to be ordered by the Tribunal if the defenders claim to possession was wholly rejected.

[8] The defenders purchased No 8 in May 2012. The property comprises a house with garden ground and a woodland area. They also purchased the adjacent six acre field to the south of the parties’ properties. They instructed Lesley Inkson of Simpson & Marwick in Aberdeen to act on their behalf in relation to the purchase.

[9] The title deed was a disposition recorded on 9 June 1978. There were two plans referred to in the disposition. One was an estate plan which showed the general layout of the estate including No. 8. The second plan showed the shape and dimensions of the plot. It had no explicit datum point but the entrance road was shown and the line of the south edge of the plot can readily be identified with the line of the wall between the plot and the field. This is in the form of a ha-ha with a ditch on the field side. However, as Mr Horrell pointed out, there was nothing in the disposition or in the plan positively identifying this line with the line of the wall.

[10] During the purchasing process, the defenders were unsure of their precise boundaries. They had particular difficulty with the west boundary. They attempted to identify it on the ground. Mr Horrell wished to be able to identify the subjects by reference to the Ordinance Survey map. At the defenders’ solicitors’ request a P16 application was sent by the seller’s solicitors. This is a standard style of enquiry to the Keeper to find out if the plans are sufficient to allow her to identify the subjects. The P16 Application was completed on 16 March 2012. The response from the Keeper stated that the “The boundaries of the Subjects coincide with those on the OS map.” To a conveyancer, this was good news. It meant that the Keeper was satisfied that the subjects could be adequately identified. Although the Keeper’s staff apparently made a plan for their internal purposes which accurately transferred the Sasine plan to the OS map, it was accepted that this was not disclosed to the solicitors at that time. Mr Horrell was given to understand that an OS map clearly defining their property boundaries existed but that it was not possible for them to obtain a definitive plan prior to completion. He did not have a detailed understanding of how the property system in Scotland worked.

[11] The Keeper’s response also said that: “The boundaries between the points A-B, C-D, and D-E on your plan are not defined on the OS map.” (These references were not to the A, C and F described above.) The plain implication was that the other boundaries, including the line of the ha-ha wall, were identifiable by reference to the OS map.

[12] The defenders proceeded with the purchase although they were not satisfied as to the precise extent of their subjects. Missives were concluded in March 2012. Prior to that they had walked round their boundary as best they understood it from the disposition and plan. They assumed their west boundary to run somewhere to the east of a clump of impenetrable bushes on the disputed triangle. This would have been close to the line F – C.

[13] The defenders saw the particulars for sale which did not include a plan but referred to the subjects as comprising 1.5 acres. The disputed triangle is approximately 0.6 acres. The area of the defenders undisputed plot is about 1.3 acres

[14] The defenders took possession of the house and ground at No 8 on 4 May 2012. The previous owners had not lived in the house. It had been let for many years. The defenders have never lived in the house. They continued to live a few miles away at Drumoak. The house was in a poor state of repair. The defenders required to do a lot of work. Much of this they did themselves. Work included fully overhauling the boiler, reconnecting and flushing out a blocked water system and getting some furnishings for the property organised as well as maintenance works in the garden, woodland and field. In the summer of 2012 they assumed their boundary was more or less on the line C-F. They did not know precisely where the line lay.

[15] As the defenders were unsure of the precise line of the west boundary at that time we are satisfied that any entry on to the disputed area significantly to the west of that line could not have been with the intention of possessing it. They did not rely on any activities there in the summer although we heard that they arranged for an initial tree survey. A report following a site visit was produced on 4 June 2012 by Mrs Horrell’s father who was in business as Forest Advisory Services. It specifically mentioned the 2 tallest trees as being Sitka Spruce. One of these trees was in the disputed area.

[16] The defenders’ application for registration of the subjects and registration was confirmed on 18 September 2012. The defenders received the Land Certificate from Lesley Inkson by letter dated 28 September 2012. She commented on the Title Plan: “One thing that strikes me is that your title boundary appears to go through a building which clearly belongs to someone else. It may well be that this building does not exist on the ground in which case it does not matter. In any event, it is not especially a problem for you, more it is a problem for the person who does own and occupy that building.” She asked them to check whether the building existed on the ground. They found that it appeared to be a stable block. When this was reported to Lesley Inkson she replied by email which dealt with various matters and included: “The Plan: I am relieved that you are happy with the extent of the subjects as shown. It was quite the most vague P16 I have ever seen. I imagine there will be an issue for the owners of number 7 as and when they come to either sell or register their title given that on paper (and in your Government guaranteed title) you own half their stable block. I would suggest that this is something best left dormant for the time being until such time as it becomes a problem for number 7”. She did not suggest that the plan gave rise to any other issues and the plain implication of her comment was that the defenders were entitled to rely on the plan if it suited them.

[17] The defenders were happy to accept that their property was as shown on the title sheet. Although Mr Horrell went to examine the west boundary he did not attempt to look too closely at the line. He did not attempt to walk the west boundary on this occasion. He told us he simply satisfied himself of its direction from a point near “A” and saw that it appeared to go through the stable building. His evidence was that he did not go close to the house and did not at that time realise that it cut through the appellants’ cultivated garden area and paved area and other features associated with their house. He said that he did not realise how close it was to the house. The defenders eventually conceded that there could be rectification of the title to remove the area of the stables and garden ground. This area can conveniently be referred to as the “conceded area”.

[18] After receipt of the title plan Mr Horrell regarded himself as free to take possession of the land within the disputed triangle. He did some work within there by way of pruning and clearing deadwood. Wood that was usable as a fuel source was taken to two separate locations in the garden area of his property and stockpiled. Usable firewood from this disputed area was stored on a log pile well within the undisputed part of No 8. Brushwood from the triangle and from the defenders undisputed subjects was burned in a bonfire located close to where wood was gathered but outwith the triangle.

[19] Mr Horrell bought some bare root saplings as a Christmas present for his wife. He intended to create an edible hedge. The saplings included different types of fruit. He started planting in mid-January but the work was interrupted by snow. He had planted some 11 saplings by 12 February 2013. They were within the disputed triangle at a point to the west of point “C”. He attempted to protect the saplings by using protective green tubes or sheaths. Mrs Gray noticed the tubes on 12 February. This was the first time the appellants had any indication of activity within the disputed area which might be realistically be understood as referable to an assertion of ownership by the defenders.

[20] The appellants had lived at No. 7 since 1983. There is no doubt that they had taken full possession of the subjects as shown in their Sasine title. The appellants had a clear idea of where their east boundary lay. Although the precise position of F was not marked, they took it to be close to an identifiable oak tree. They had measured their south boundary from a clearly identified point in the stream at the corner of their west and south boundary and, accordingly were in no doubt as to position C. It lay just to the west of a very obvious tree which appeared to have been coppiced at some stage. There was no dispute as to the extent of the appellants’ property prior to the defenders’ conflicting title and we are satisfied that nothing turns on the extent of their possession prior to May 2012.

[21] There was no evidence relating to any explicit actings of the appellants within the disputed area between May and September 2012 although Mr Gray spoke to his practice of checking the trees approximately monthly, particularly after stormy weather. The evidence of active possession by the appellants after September 2012 was somewhat sparse. There is no doubt that they made active daily use of the conceded area. The stable was used for their dogs and Mrs Gray tended the garden area. We accept that Mr Gray walked through the remaining parts of the disputed triangle approximately once a month to check the state of the trees and that, on such occasions he would routinely clear up broken or fallen branches. Mrs Gray said that she exercised the dogs daily in the disputed triangle. However, she explained that she tended to wait in an area near the stables, outwith the triangle, while the dogs ran through the trees in the disputed area and other areas. She did not give any positive evidence of being in the disputed area herself between September 2012 and February 2013.

[22] When Mrs Gray noticed the green sheaths she discussed this with her husband. Their initial thought was that the defenders had employed contractors to plant the saplings and that the contractors had misunderstood the boundary. As the defenders did not live in No. 8 and the appellants had no address or phone number they simply left a note in No. 8. They did this on 12 February 2013. The note was in the following terms: “Hi Perrin, Some of your planting is on our side of the plot boundary. Give me a shout and we can walk the plot boundaries”. Mr Gray met Mr Horrell on several occasions to discuss matters in friendly way. They recognised that something had to be done. Mrs Gray was a solicitor specialising in residential property matters and she made appropriate enquiries the detail of which have no bearing on the issue before us.

[23] Prior to the boundary problem there had been little contact between the parties. The appellants were working during the week. Because of the undergrowth and the fact that the house at No. 8 is situated at a higher level than No.7, the appellants would not necessarily be aware of activities at or near the house at No. 8. For most of the summer, the appellants had seen no sign of activity at No. 8. There was some dispute as to whether Colin Gray made one or two visits to No. 8 in 2012 but nothing turns on this. The visits were friendly and nothing was said relating to the disputed area. We are satisfied that one was on 28 December 2012. There may have been another in November.

[24] On one occasion, probably also on 28 December 2012, Mr Horrell’s brother and his wife and children were visiting. They walked into the disputed area and ended near the back of the stables. They may have been collecting deadwood. We accept that, if so, Mr Gray did not realise this. However, when he saw them, his immediate reaction was to go to see what they were doing. We accept that he intended this as a polite and friendly challenge to their right to be there. They had an amicable conversation. He pointed out various markers of the graves of family dogs in the area at the back of the stables. It can fairly be assumed that his attitude and conversation made it clear that he was asserting ownership of the land in that area. In effect he politely saw them off the premises. Mrs Horrell’s brother must have realised that Mr Gray was acting as if he was an owner. He later told the defenders that he thought the situation was odd as he had understood that the land down to the stables was owned by them. It may be added that it is not clear whether Mr Horrell came on the scene or spoke to Mr Gray later that day when Mr Gray was working on a drain at the other side of his house. Mr Gray said that Mr Horrell appeared while he was talking to the relatives and made no attempt to assert his ownership. Mr Horrell said they met later in the day when he was in his car. But even if Mr Gray’s version is correct we do not think it adds anything of significance. The conversation had been friendly. It had not involved any direct assertion of ownership, one way or another. We are satisfied that Mr Gray had made his position clear enough to the relatives before Mr Horrell appeared.

[25] Mr Horrell made the point that Mr Gray did not challenge the bonfire activities nor question where they were taking the wood from. He did not comment on their stockpiles of firewood or ask where they had gathered the timber from. However, it is clear that there was extensive woodland within the undisputed No.8 subjects which could have provided material for the woodpiles. It was not suggested that the appellants had ever seen the defenders taking wood or doing anything in the disputed triangle. There was no reason for Mr Gray to question the origins of the woodpiles. We accept the appellants’ evidence that they had no knowledge of any activity by the defenders within that triangle until they saw the saplings - except the presence of the relatives

[26] In response to Mr Gray’s note Mrs Horrell emailed Lesley Inkson for advice on 12 February and she responded the same day. She expressed her understanding that the Keeper generally plotted the title plans extremely carefully and said they would have an indemnity if it transpired that the plan was incorrect. Mr Gray and Mr Horrell met to discuss the situation on 15 February 2013.

[27] Mrs Gray, who is a solicitor, then made an attempt to find out from the Keeper where the mistake lay and Mrs Horrell was in further communication with Leslie Inkson. Although the two sides expressed some criticism of each other’s actings after the problem came to light, we think that nothing in these actings casts any light on the essential issues. The next step was a letter from the Keeper on 18 April 2013 stating that she proposed to rectify the defenders’ Land Certificate. Mr Horrell expressed his shock on receiving such a letter. However, he said that the material in the letter allowed him to identify helpful web-sites and he found out that rectification would not be possible if the defenders were in possession. He thought they had been in possession. He emailed Leslie Inkson stating that they believed that they fell within the definition of proprietor in possession as they had “planted trees and carried out woodland maintenance work…which was unchallenged…until February 2013.” He was prepared to consider some compromise. However, on 22 May Mrs Gray phoned Lesley Inkson and left a message to the effect that there could “no compromise” on the issue of the boundary between the properties. She also wrote to that effect.

[28] In response to a letter from Mr Gray dated 13 June Mr Horrell replied by email dated 14 June explaining that Mrs Horrell’s mother had just died but that the defenders would be intending to maintain and plant in the area defined in their Land Certificate. He explained to us that he had been concerned that if the letter was not explicitly challenged in writing, this might cause further problems down the line. However, his response triggered the obtaining of an interim interdict against the defenders from entering the disputed area property or carrying out any works on it. This prevented them from entering the disputed area and, he said, restricted his ability to obtain evidence of his activities in the area.

[29] Both sides attempted to make something of changes in the others position. Until the interdict procedure the defenders had claimed to have possessed the whole disputed area but they subsequently withdrew their claim to have possessed conceded area. The plan prepared by the Keeper as her proposed rectification had been used by Mr Gray in his original application to the Tribunal. It was only on 16 July 2014 by way of final adjustments that Mr Gray’s position changed that he put forward the position that the Keeper’s proposed rectification was incorrect as their Sasine title did not extend as far as the Keeper’s proposed rectification. It seemed that there was a gap between their Sasine title and the Sasine title to No 8. We do not think anything turns on either point. Mr Horrell explained that he had claimed possession of the disputed area because he thought it could be treated as a unit as far as the question of possession was concerned.

Submissions for appellant

[30] Mr Howie submitted that it was clear that the defenders’ title was inaccurate. Accuracy was important and accordingly there was a prima facie case for rectification. He referred to the provisions of sec 9. It was clear that the defenders were to be treated as proprietors of the disputed triangle. Mr Howie conceded that he could not argue that more was required for prejudice than the loss of land which would follow rectification. He did not pray in aid any of the exceptions and, accordingly, the only issue was whether the defenders could properly be regarded as being “in possession” of the disputed area.

[31] He challenged this on two bases. He submitted that the evidence did not support the proposition that they had had adequate possession and control to overcome the presumption of possession by the appellants. In any event, he submitted that the defenders had to show that they relied on having a proper title. They could not do so when they knew that their Title Certificate was erroneous.

[32] Mr Howie went on to deal with various sub-questions, the first being the time at which the issue of possession required to be tested. At the latest it was the date of the application to rectify but plainly consideration could be given to a tract of time before that. It was very much a matter of circumstances. In most cases possession required to be considered at the point where it was challenged. Challenge did not require more than a civil protest putting the proprietor on notice. He dealt in some detail with the authorities dealing with the “tennis match”: Safeway v Tesco, Burton v The Keeper; Burr v The Keeper; McCoach v The Keeper. He submitted that in the present case the latest date was 18 March 2013 or, at worst for him, 18 April. However it was clear that the defenders possession had been promptly challenged by the note of 12 February. There had been no further relevant work until the strimming in June 2013 which was plainly too late. He submitted that the fact that there had been immediate objection to the planting of saplings cut that down as relevant evidence of an assertion of possession and control.

[33] The next sub-question was what was being possessed. It was important in the first place to limit evidence to possession within the triangle. Evidence of activities within the undisputed parts of No. 8 or in the field ditch were of no significance. On the other hand evidence of the appellants’ activities within the conceded part of the triangle were of importance because they were plainly activities within the disputed area.

[34] Counsel made submissions on evidential matters and dealt briefly with the assertions of possession in the defenders’ pleadings. We have taken account of these submissions in our assessment. We need not set them out.

[35] He dealt with the test for possession. Although he accepted that there were no explicit reference to good faith such a requirement could be found “nestling in the dicta”. He referred to the test as discussed in Safeway v Tesco at [77] to [84]. It was, he submitted, clear that relevant possession had to be possession on the faith of the register: [77], [78]. The question was always one of fact and degree and was likely to be site specific: Nicol v The Keeper [26]. The question was whether the defenders had shown they had dispossessed the appellants. They had a legal right to access to maintain the wall so working there was consistent with the appellants’ possession. He submitted that it was trite law that there could only be one possessor. The evidence was inadequate to show that Mr Horrell had displaced the appellants.

[36] In any event, he submitted that implicit in the cases was an assumption that any possession required to be in good faith. He freely conceded that there was no binding authority to that effect but it was an assumption “nestling in the decisions”. He referred to Kaur v Singh at 188 E-F and 189 F. The underlying principle was that an innocent registered proprietor should not be ousted. That lay behind the legislation. The “qualifications” or “modifiers” were there for that reason. Possession had to be in good faith. The observation of Lord Hamilton in Safeway v Tesco [77] that possession had to be “on the faith of the Register” was of particular importance. Plainly his Lordship had not used this expression by accident. He intended to express a view on an important point even although it was not essential to the decision.

[37] Counsel accepted that there were dicta which were, at first sight, to the contrary. He referred to Burton v The Keeper, a decision of the Tribunal to the effect that parties were entitled to rely on the Register “whether or not they knew” it was in error. He distinguished that case as one where the error arose before the new proprietor bought the subjects. It was mere speculation as to whether or not he knew of any defect.

[38] Counsel also referred to the “offside goals” rule: Rodgers v Fawdry etc. This was a fundamental principle and it would be unsurprising if the Courts showed a similar disinclination to give protection to a proprietor who was not in good faith. This could be approached simply as an underlying principle or as an aspect of the mental element of possession. The underlying policy was that people should not lose their property on the basis of someone exploiting a mistake. Where there was a mistake the balance should favour the innocent loser. There was clear support for this from the dicta in the Inner House.

[39] Another Tribunal decision which appears to say that good faith was irrelevant was McCoach v The Keeper, at p30.This was another obiter comment. It was, he suggested, inconsistent with the dicta from Kaur v Singh and Safeway v Tesco.

[40] The submission that good faith was necessary was demonstrated in the authorities relating to the “tennis match”. The underlying principle was similar. Parties could not engineer possession when they were not in good faith.

[41] Counsel accepted that a contrary argument might arise based on the express provisions of sec 9. It could be argued that where there was express provision preventing a party relying on possession where there had been fraud or carelessness, there could be no implied provision dealing with an absence of good faith. While an express exclusion of carelessness might have been added for clarification, the reference to fraud was plainly redundant if there was an underlying requirement of good faith. He submitted, however that the argument from redundancy was seldom safe. He persuasively argued that lawyers were frequently guilty of use of redundant material. It would be surprising if mere carelessness could be rectified when bad faith could not.

[42] Mr Howie dealt with the various productions which in his submission made it clear that Mr Horrell must have been well aware from the outset that there was a mistake in the title plan. The evidence of Ms Inkson would have thrown a clear light on this matter. She had not been led by the defenders and the appellants were entitled to the benefit of the best inferences to be taken in the circumstances. She could be assumed to be a careful solicitor and to have advised her clients in accordance with normal practice. There was a plain error and the obvious thing would have been to go back to check matters with the Keeper. He submitted that her knowledge as agent should be attributed to the defenders as principals: Adam v Thorntons WS. At [65].

[43] As the defenders could not have been in good faith the mental element necessary for possession was inevitably missing. But in any event the Tribunal should give effect to the policy that good faith was necessary.

Submissions for defenders

[44] Mr MacDonald submitted that it was for the appellants to establish that there should be rectification of the defenders’ title. The only issue was whether the defenders were in possession. The statutory provisions were based on a policy of stability. It was wrong to suggest that there was any presumption that there should be rectification if there was a demonstrated inaccuracy. The policy was that a proprietor in possession should not be disturbed. He referred to Short’s Trustee v The Keeper and to Safeway v Tesco at [76] and [77]. The system of registration had required a fundamental choice and the choice made was to give primacy to the position of a proprietor in possession. It was wrong to start by assuming the appellants were in possession. It was not for the defenders to show they had displaced them. The focus was on the actings of a proprietor. Mr MacDonald made detailed submissions on the evidence and inferences to be drawn in support of his contention that the evidence was quite sufficient to show the essential mental and physical elements of possession.

[45] He accepted that in assessing possession there was no definitive critical date. The date of the application could be seen as a long stop. However there was no limitation to the tract of time which could be considered back to the date of entry or the date of issue of the certificate. In his submission the appropriate date was the date of entry because there could in some cases be a long delay before issue of the land certificate. However, this was not a real issue in the present case as most of the work relied on had been carried out over the winter months. He submitted that actings which might be described as a tennis match were not necessarily irrelevant. It was all a matter of the weight to be given to particular facts and circumstances. He made the specific point that the planting of the saplings was a clear assertion of property rights. This could not be negated by a challenge after it had taken place. The tennis match could not start before the note.

[46] The contention that there was a requirement of good faith was, in his submission, an innovation. In any event, the Tribunal should tread carefully before making any finding of an absence of good faith. It would have to be based on actual knowledge of error or possibly constructive knowledge through Mrs Inkson. But it would be wrong to import into the statute words which did not appear. The Act made specific provision for acts of fraud or carelessness and the absence of any requirement of good faith supported the view that the policy was to protect possession without enquiry into the mental state of the possessor. There was no doubt that such a policy could cause problems but that was inherent in the choice of system. A different choice would have led to other problems.

[47] Mr MacDonald referred to the decision in Dougbar Properties v The Keeper. It dealtwith an indemnity but the principles discussed were applicable to sec 9 as well as to sec 12. He also relied on dicta in McCoach v The Keeper. The important point was that when a certificate was issued the proprietor was entitled to rely on it. The suggestion that this was to be qualified by reference to awareness of a possible problem flew in the face of the policy.

[48] The intimation of a difficulty with the stable block pointed to an anomaly but did not in itself demonstrate that the title plan was wrong. The defenders’ lawyer had never suggested this. In response to the suggestion that inferences could be drawn from the failure to lead Ms Inkson as a witness, he submitted that the appellants could have called her. Accordingly no inferences could properly be drawn.

[49] In conclusion Mr MacDonald asked us to refuse the rectification sought while accepting that there should be some rectification to exclude the conceded area. It was an area which the defenders had never possessed.

Response

[50] In response, Mr Howie dealt with some aspects of evidence. If a finding of a need for bona fide reliance on a title would be an innovation, the trail had been blazed by the Inner House in Short’s Trustee v Keeper. The policy of protection of a proprietor in possession was not subverted by a requirement of good faith. His challenge was essentially that a proprietor could not properly be in possession without a genuine mental element.

[51] He contended that Dougbar could readily be distinguished. It dealt with the completely different issue of carelessness inducing an error. There was no doubt that indemnity would be available in the present case. There was no anomaly in treating sec 12 differently from sec 9.

[52] He could not have used Ms Inkson as a witness. She was the defenders’ solicitor and the privilege of confidentiality had not been waived. The appellants were entitled to assume that the defenders had a constructive knowledge of what she must have known, on the assumption, which the law made, that she did everything properly.

Discussion

[53] Neither party made explicit submissions on credibility. We are satisfied that the appellants were truthful witnesses. There was some doubt about the reliability of their recollection of events before they realised there was a problem. This is not surprising but we do not think anything turns on such points. We found nothing in the manner and demeanour of Mr Horrell to cast doubt on his truthfulness. He gave the impression of a careful man who had thought through all the issues quite thoroughly. But we were not satisfied that his explanations provided an adequate explanation for all of his actings and we were left with some doubt as to his credibility in the broader sense of that term. We shall deal with specific matters in the discussion below but we may note at this stage some of the assertions in writing, pleadings or evidence which proved unfounded or exaggerated.

[54] In his written witness statement Mr Horrell asserted that he had calculated that he had taken “approximately 5 to 10 tonnes” of wood from the disputed triangle. He thought the bonfire sites totalled around 20 cubic metres. Standing the fact that wood density would be in the order of 500 to 1000 kilogrammes per cubic metre with a 50% area of void space allowed him to estimate the tonnage of deadwood removed. The first bonfire was about 15 cubic metres and the second one around 5 cubic metres. The second or smaller bonfire was a short distance from the boundary of the disputed area. Deadwood was deposited on the nearest bonfire site. He suggested that a lot of the deadwood for the smaller bonfire was cleared exclusively from the disputed area. However, he had to concede not only that the calculations were very approximate but that in fact much of the material came from within the undisputed No 8. He ended saying that perhaps 2 tonnes had come from the disputed area though he stressed that he had carried it personally and was in no doubt that it was a significant amount. He suggested that he had spent the equivalent of two man weeks clearing the disputed ground. But he was employed during the week. Any extensive work at weekends would, we think have been bound to be noticed by the appellants. We do not accept that he spent anything like two weeks between October and February on that ground when he had plenty work to do in or nearer his house.

[55] In their pleadings the defenders refer to a variety of activities within the disputed area. These included the planting of a hazel tree in January 2013 and bonfires. It is not now disputed that the hazel was not planted in the disputed area. The nearest bonfire was well within the undisputed No 8. However, it may be noted that as there was some confusion about the precise line of the eastern edge of the disputed area – their western boundary – and Mr Horrell’s assertion that he initially thought the bonfires and hazel were in that area is an explanation for this averment. The averment of having felled trees in the disputed area was departed from. The contention that work had been done to clear a ditch lost much of its force when it became clear that the ditch in question was in the defenders’ field. It included cutting of overhanging branches from the disputed area. Wood from the ditch was piled onto the top of the wall in the disputed area but it was soon moved to stockpile or bonfire stack.

[56] We have mentioned Mr Horrell’s assertion that he had taken possession of the whole disputed area. He explained that this was because he assumed that possession of any of it was possession of the whole. That is a matter which gives problems even for experienced lawyers. However, we would have expected a layman to have been more concerned to deal with the primary facts and to have made it clear that he had not ever been near the “conceded area”. In any event, in his evidence he said explicitly that they had never possessed “the stable, garden or undergrowth”.

[57] Put shortly, we think it may fairly be said that there was an element of exaggeration in Mr Horrell’s various contentions as to possession. But, we see no reason to doubt that he did make use and enjoyment of parts of the disputed land. There was no reason why he should not have done.

Good faith

[58] A critical element in this case was the submission that a requirement of good faith was implicit in the statutory reference to possession or that the mental element of possession required some element of good faith. The Tribunal has expressed views in McCoach and Burton to the effect that the good faith of a proprietor in possession is irrelevant. We accept such expressions of view as obiter and accordingly do not regard ourselves as constrained by them. This appears to be the first time the point has risen sharply and we require to consider all the material bearing on it. The dicta do, of course, support the defenders’ position.

[59] We have set out, above, the relevant provisions of the Act. Protection is given to “a proprietor in possession”. That expression is not qualified in any way. However, there is express provision allowing correction where such a proprietor has, broadly speaking, been to blame for the incorrect title. In other words, the Act implicitly accepts that a person who has gained his title by fraud can still be described as a “proprietor in possession”. It makes special provision to deal with fraud and carelessness of such a person where that has caused the error. The way the matter is express is thus entirely it is consistent with the conclusion that an owner can have possession without being in good faith not only because the express exceptions make it difficult to infer that Parliament intended other exceptions to be implied, but because Parliament has used the expression “proprietor in possession” to refer to someone who ex hypothesi has obtained possession by fraud or carelessness. Parliament has made express provision to deal with aspects of fault on a proprietor’s part in sec 9 limited to circumstances which have causing the erroneous registration. It is not easy to justify any inference of a further exception applying to events after registration. As we shall see, one difficulty is that, while perfect good faith can no doubt be identified, the absence of good faith can cover a variety of situations and it is far from obvious that Parliament would have intended that a person who merely had some reason to be unsure about the accuracy of the title was not to be allowed to rely on it.

[60] We see some force in the submission that the approach taken by the Tribunal and by the Court as to the relevance of actings at the stage of the “tennis match” is indicative of a recognition that the concept of good faith cannot be wholly disregarded. That expression has come to be used, a little loosely, in relation to activities of the nature of possession carried out after a challenge and seen as intended primarily to provide evidence of possession. It has been recognised that once a challenge or dispute has come to light, the Tribunal has to consider with care the evidence of activities which follow. It is implicit in all discussion of the matter that wilful acts intended simply to assert possession in face of protest are either irrelevant or entitled to little weight. They may properly fall to be disregarded as actions designed to provide evidence in relation to a dispute rather than as acts of possession as such. But the need for a distinction is recognised: Safeways v Tesco [62].

[61] The need for care is recognised when there has been an explicit challenge because it can be seen that actings deliberately intended to establish a right in face of a claim may be thought to have a different character from routine actings in reliance on a good title. We accept that it is not easy to see why this should depend on explicit challenge when the position of the “true proprietor” is plain from facts and circumstances. In relation to the stable, Mr Horrell said he did not wish to discuss with his new neighbours the west boundary and the fact that it went through their stable because it would have been an “awkward conversation”. He could have been in no doubt that any attempt to take possession of the stable or the appellant’s garden would have provoked an immediate challenge. Why should it be necessary wait for an explicit challenge before the evidence requires to be ignored or doubted?

[62] The defenders might have waited until the appellants went on holiday and then spent a couple of weeks using the garden, perhaps simply cutting the grass on the line of their apparent boundary, to show that they were taking possession in reliance on their title. Why should actings in knowledge that a challenge would inevitably be made if the neighbour had been aware of them have a weight which would not be given to actings following an actual challenge? Why should going to prune trees in the disputed ground when the appellants were at work not be viewed in the same way? In the present case, there was nothing on the ground to indicate the “true” line of the west boundary of No. 8 but our consideration of the relevant law must have regard to the huge variety of situations and actings which might arise. If we assume that the original line C-F had been marked by the appellants by something like a row of posts or marker stones and that the defenders had asserted possession covertly, the instinctive reaction of any court or tribunal would no doubt be that this was in the same class as the “tennis match” and that such activities fell to be ignored as evidence of possession. But against that, it must be recognised that where activities are carried out consciously on the basis of a title conferred by express statutory provision they can properly be said to demonstrate an intention to possess. Parliament has not attempted to exclude such possession. It can readily be accepted that in order to achieve the aim of having a register which could be relied on as the measure of right, Parliament accepted that it was inappropriate to have any qualification, particularly one which would inevitable be imprecise and difficult to apply in practice.

[63] Mr Howie placed considerable reliance on the observations of Lord Hamilton in Safeway v Tesco [77] and in particular on the reference to possession “on the faith of the register”. We think it necessary to view that comment in context. His Lordship said: “In my view it is necessary, in the circumstances of this case, to make some attempt to devine 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 nevertheless, 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 an enjoyment or use who is protected against rectification. A “proprietor” who has not had such an enjoyment or use is not so protected and may require to seek his remedy, if any, in the form of indemnity”

[64] He accepted it as obiter but he submitted that Lord Hamilton would not have made the reference to possession “on the faith of the register” had he not positively intended it. However, his Lordship was not addressing the question of “good faith”. His observation appears to us to do no more than refer to possession founded on the register. A person who knows that the register might well not be an accurate reflection of the previous title but who has been given to understand that the register is the measure of his rights can readily be said to take possession “on the faith of the register”. Indeed it might be said that, on any view of the defenders’ state of knowledge of the “true” title, he was simply acting on the faith of the title plan issued by the Keeper. We are not persuaded that this passage can properly be read as showing that Lord Hamilton intended to import a test of good faith. In any event even if his observation can be read as a requirement of “good faith reliance” as opposed to mere reliance, he does not attempt to suggest that absence of good faith would be fatal. In particular it is to be noted that he contrasts the position of a proprietor in possession with that of a proprietor who has not had enjoyment or use, that who has not had possession. Such a person requires to seek a remedy in the form of indemnity. We find the relationship between possession and indemnity touched on in various cases. Mr Howie stressed that if the Register was rectified the defenders would still be entitled to indemnity. We return to that below in our consideration of the decision in Dougbar but it might be thoughtodd if Parliament intended good faith as a requirement for protection of possession but was nevertheless prepared to provide a person with compensation for loss of possession in bad faith.

[65] The first full study of the implications of the Act may be found in Short’s Trustee v The Keeper. In that case there had been a gratuitous alienation of flats. The disposition in favour of the registered proprietor had been reduced. It is noted in course of the discussion that such a proprietor, if in good faith, would have been protected by the provisions of sec 34 of the Bankruptcy (Scotland) Act 1985: top p 132. An inference can be drawn that the court understood that the proprietor in that case had not been acting in good faith. There was a general discussion of the scheme of the 1979 Act and the debate in that case related to the question as to whether there was any remedy alternative to sec 9. In that context we think the court have been expected to comment on the scope of the remedy under sec 9 if it had thought that this depended on considerations of good faith. Indeed, we have been unable to find anything in the careful and broadly based discussion of the effects of the 1979 Act in Shorts Tr. which gives any support to the view that there is “nestling in the judicial dicta” a requirement of good faith. We think if anything can be said to nestle in the bare dicta about protection of possession it must be an inference that the statutory provision is not subject to any implicit qualification. For example, Lord Hope at p 141 said: “[The powers to rectify] are considerably restricted by the provisions of sec 9(3). In particular they are restricted by sub-para. (iii) of that subsection which permits rectification of an inaccuracy only where this has been caused wholly or substantially by the fraud or carelessness of the proprietor in possession”. His Lordship was presenting a broad picture of the effects of the Act and in that context it is hard to imagine that he would have omitted reference to the possibility of rectification where the proprietor was not in good faith if he had thought there was any room for such an exception.

[66] Lord Hope dealt in detail with the legislative background. There had been discussion of bona fides in the preliminary reports and he noted, at p 147, that the Bill introduced to Parliament included a power to the Keeper to rectify against a proprietor in possession if “the circumstances of the case are such that it is unjust that the interests of the proprietor in possession be preferred to those of another person”. At p148 he dealt with the discussion which led to removal of that provision from the legislation as enacted. We are satisfied that it is impossible to accept that Parliament intended an implicit control of good faith when it had specifically accepted that a provision which would hve covered this, fell to be removed from the Bill. Lord Hope concluded “that Parliament was satisfied that a more restricted approach to rectification than that in use in England was appropriate for the Scottish system.”

[67] In Kaur v Singh, Lord Rodger summarised the effect of sec 9 in relation to a registered proprietor in possession in terms which again give no hint of an implicit need for good faith: “If, however, the registered proprietor is in possession, then the true owners claim to rectification is excluded and his only remedy (if any) will be indemnity, unless the registered proprietor consents to rectification or the inaccuracy in the register has been caused by his fraud or carelessless”. However, it can be said that he went on the consider the policy as being based on English provisions and a principle that an “innocent registered proprietor” who is in physical occupation of the registered property should not be ousted from his enjoyment. He expressed little doubt that this principle also lay behind sec 9. This may give some support to the idea of good faith nestling in the dicta but it must be observed that policy behind an Act is not a primary guide to construction. We must have regard to the language used as discussed above.

[68] Although we accept that a right to indemnity may give rise to different issues from a right to possession, it is clear that in a broad sense these rights can be viewed as alternatives. The intention is to try to ensure that a person who loses land will be compensated. Any underlying principle which would prevent reliance on possession on grounds of good faith might reasonably be expected to be similarly applicable to a right to indemnity. We accordingly consider that the approach taken by Lord MacFadyen in the indemnity case Dougbar Properties Ltd does provide some guidance in relation to possession. Thatwas a case where a right of parking had been given in error. It had never been possessed and it was not disputed that the title could be corrected. The question was whether a claim to compensation for loss of the right was prevented by the fact that the proprietors had been aware of the error from the outset. Mr Howie sought to distinguish the decision as wholly irrelevant to construction of sec 9 because it was dealing with a claim under sec 12, but we are not persuaded that this is a relevant distinction in the context of an attempt to imply an exclusion based on a general principle of good faith. The court required to address the direct factual issue of a party acquiring a title in the knowledge that the Keeper had made an error. It dealt expressly with the question of whether that party was, nevertheless, entitled to rely on the title sheet. The views of Lord MacFadyen are entitled to the highest respect. His observations clearly support the proposition that a proprietor is entitled to rely on the title sheet. Such a proprietor may be aware that his title is liable to rectification. “But, so long as it remains un-rectified, the inaccurate entry is nevertheless the measure of the proprietor’s rights…… It would, in my opinion, be wrong to hold that before rectification the proprietor does not have the right which the title sheet bears to give him if he knows that the right constitutes an inaccuracy in the register.” : at p 531 D-F. Plainly one right which a proprietor has is to take possession.

[69] His Lordship recognised the need for caution in relation to English authorities but we agree with his comment: “The observation of Lord Wilberforce in Midland Bank Trust Co. Ltd. v Green that the system of protection of title to land provided by the legislation should not be ‘read down or glossed’ seems to me to be equally applicable in the Scottish context.”: p 532 B-C. He continued: “The 1979 Act does make provision to limit the protection from rectification afforded to the proprietor in possession, and to remove the right to indemnity, in certain defined circumstances. Section 9(3)(a)(iii) and sec 12(3)(n) deploy the concepts of fraud and carelessness for those purposes. Both of those concepts may involve consideration of the state of the proprietor’s knowledge. But it would be inconsistent with the existence of the specific provision in sec 12(3)(n) to hold that, at the prior stage of determining whether a loss has been suffered, the proprietor who knows when he acquires it that the registered title is inaccurate should be deprived of the benefit of the rights which that title bears to confer by denying him the right to rely on the register as the measure of his rights.” We find his Lordship’s remarks wholly persuasive.

[70] We take the same view. We are satisfied that having regard to the contrast between the express exemption where there has been fraud or carelessness, and the absence of any qualification or exemption based on good faith, there is no justification for reading into the Act any such qualification. Mr Howie touched on the decision in Rodgers v Fawdry and the principle of good faith exemplified in that case. However, we are satisfied that this does not add a different element to the question of construction of sec 9. Any court would wish to imply a requirement of good faith whenever possible. But, as we have seen the real problem in the present case is that a right to rely on the Register is plainly an important policy. Parliament has made an express exception. It considered and rejected an exception which might possibly have covered the present case. It would be wrong for us to read into the Act a similar exception. We conclude that awareness of an error in the title sheet is not fatal to reliance on the title. We are satisfied that this is simply part of the scheme of the Act. The policy has been described in different ways but fundamentally the intention was that people should be able to rely on the registered titles. Even if it was possible confidently to point to a more restricted policy this would not justify reading into that Act words that were not there unless perhaps the plain meaning of the language used would prevent the policy receiving effect. An intention to protect persons who have enjoyed possession innocently would not be inconsistent with protection going beyond that to cover all possessors.

[71] An alternative approach to good faith was based on a need for good faith as an element in the mental intention needed for possession. We were not referred to any authority for this proposition. We are satisfied that the mental element in this context is simply the intention to use and enjoy as owner. If the proprietor has made use of land because he has title as owner, that seems to us sufficient. It may be contrasted with the position of a walker exercising a right to roam or a neighbour gathering firewood on the basis that the proprietor either will not notice or will not mind. They would not have any intention to possess.

The defenders’ activities

[72] In case we are wrong in these views it is necessary to deal with the facts of the present case bearing on the defenders’ state of knowledge. It may be observed at the outset that when this is done, it becomes easy to understand the problem which faced Parliament. There is scope for various degrees of good faith. Some obvious questions may be posed. Is suspicion of an error to be treated as equivalent to knowledge? If not, is mere suspicion enough to put a party in bad faith. Is a misunderstanding of law to be treated as equivalent to bad faith? Is a party excused by reliance on a solicitor’s advice? Would it matter if that advice had been given carelessly? We are satisfied, for example, that this case does not require us to address the extreme case of a proprietor knowing of a clear error and deliberately contriving to take possession purely to avoid risk of rectification. As will be seen it is less easy to say precisely in what category the defenders conduct lay. As Mr Howie pointed out, the Tribunal is entitled to presume that Ms Inkson did everything properly. Upon what basis might it be said that the defenders ought to have realised that her implicit advice that they could rely on the title plan was wrong?

[73] Before considering the implications which might be drawn from details of the defenders conduct, we start by cautioning ourselves against the danger of looking at matters from the perspective of the appellants. For convenience, we used at the hearing an enlarged version of one of the appellants’ productions to help witnesses explain their activities on the ground. The production was an overhead view of the appellants’ subjects showing lines between the various boundary points including points A, F and C. It seemed very obvious from the perspective of the appellants’ title that the line A – F could not represent the true boundary as it ran very close to their dwelling and represented a significant chunk of their property. However, we realise that had the disputed ground been shown on a similar type of photograph as part of the defenders’ subjects, the difference would have seemed less dramatic.

[74] That said, we cannot avoid the conclusion that the defenders were aware that the western boundary shown on their title sheet did not accurately reflect what they thought they were buying as shown on their Sasine title. Mr Horrell did not seriously suggest that they thought it did. His contention was that they thought that the Keeper’s plan was the one that mattered. Although his evidence to the effect that they had no reason to doubt the Keeper’s plan was not easy to accept, we, in turn, had no real reason to doubt that they thought they were entitled to rely on the Keeper. It should be borne in mind that although the case was presented on the basis of a tacit assumption that the defenders west boundary was necessarily the same as the appellants’ east boundary, it was not suggested that the appellants had any reason to know where the appellants’ boundary lay.

[75] Mr Horrell clearly had had a concern about the position of his boundary as shown on his Sasine plan. He had attempted to check the position of his western boundary on the ground. His manner while giving evidence was consistent with a practice of thinking things through carefully. Accordingly, his evidence of the difficulty of identification of the extent of the land shown on his Sasine title and his repeated assertions to the effect that he placed no reliance on the ha-ha wall as being the boundary on the south because there was no express reference to it in the disposition, is hard to accept as a completely accurate statement of his position. That wall was a very obvious boundary. Any purchaser unskilled in the finer points of conveyancing or land law, as Mr Horrell professed to be, would have assumed that the wall was his boundary. It is true that there was nothing in the disposition expressly to confirm such assumption but equally nothing to contradict it.

[76] It is hard to believe that he did not compare the title plan with the Sasine plan and realise that he had much more than he expected. We accept Mr Howie’s contention that if the wall was identified as the south boundary, the fact that the west boundary on the title plan was far too far to the west would have been quite apparent to the defenders on receipt of their title plan. Mr Horrell’s failure to make any attempt to satisfy himself as to the precise position of the west boundary as shown on his title plan cried out for some coherent explanation. He said that his examination of that boundary was limited to standing at point A and “taking a transit” to confirm that the line ran through the stable. He took no steps to see precisely where it went. He made no attempt to follow it on the ground or to check its position. He said he was “blind to the garden”. This is, in our view, explicable only on the basis that he was well aware that there was some error. The inference is that he did not wish to go close to the appellants’ house because he realised that this might trigger an immediate reaction. Plainly, immediate steps would have been taken by the appellants to have the matter corrected if they had got wind of it.

[77] Evidence of email exchanges with Ms Inkson support the view that the defenders were well aware that they had been given too much. They described the title sheet as “better” than they expected. They were told expressly that the boundary ran through the stable and that this would be likely to give rise to a problem at some stage.

[78] However, we also accept that Mr Horrell genuinely believed that he was entitled to rely on the title sheet. That, in effect, was what he had been told by his solicitor. Her comments on the position of the stable reflect that. She did not say there was any problem with his title. We do not think that his conduct can properly be described as in any way equivalent to “bad faith”. In particular, we do not accept that there is any basis for the contention that his conduct should be seen as being in some way worse, on a moral scale than “careless”. The difficulty in finding a proper description for Mr Horrell’s attitude to the matter tends, we think, to support the view we have taken to the effect that good faith is irrelevant. He thought there was a mistake but believed that this did not matter as he was entitled to rely on the title sheet. Even if his position could be more neatly labelled, the difficulties of legislating to cover all situations where it might seem unfair to allow a proprietor to claim protection, well explain why Parliament can be taken to have opted for a more clear-cut approach.

[79] It is plain that Mr Horrell’s recognition of the doubt about the west boundary had some consequences. He explained that if the position of the stable caused a problem they would not have stood in the way of it being sorted. In any event, he, at no time, attempted to exercise any act of physical possession in respect of the stable or the garden ground in the vicinity of the appellants’ house. At some point after the interdict proceedings, he conceded that his title could be rectified to exclude that area. He proposed a new west boundary line.

Extent of possession

[80] The test of “possession” in sec 9 requires to be applied in a way specific to its statutory context. Little guidance can be obtained from previous lines of authority dealing with possession in other contexts: Kaur v Singh (no 2) 193 G. In some circumstances, possession of a house with a garden would justify an assumption of possession of the whole garden. But where mistakes have admittedly been made as to the extent of the garden, examination of possession for the purposes of sec 9 requires to look closely at the detail of possession on the ground. If there is no obvious unit to possess, proof of possession requires evidence of physical possession of specific ground. We discussed this in more detail in the context of possession of the middle of a river in Tesco Stores Ltd v Safeway Stores Ltd at p35. In any event, we are satisfied that this is not a case where the nature of the subjects covered by the registered title is such as to justify an inference that possession of the whole may be inferred from possession of the house itself and its related gardens. We consider it necessary to have regard to the evidence of possession of each part of the disputed triangle. We are satisfied that evidence of possession by a proprietor within the relevant tract of time before the attempt to rectify can be taken to continue in absence of evidence that the possession was abandoned or that it was, in some sense, taken from them.

[81] The type of acting required to establish possession depends on the nature of the subjects. Lord Hamilton’s observations in Short’s Trustee v Keeper identify a need for “significant elements of physical control”. However, it appears from the comments which followed this reference that by control he had in mind no more than “use and enjoyment, to a more than minimal extent”: see his para. [77] quoted above. We have some reservations about the reference to activities being “more than a minimal extent”. That might be an appropriate requirement in some contexts but it may distract from the need for assessment to have regard to the extent of use appropriate to the nature of the subjects. It may be added that we see no justification for requiring a higher test for a proprietor with reason to doubt the title plan and one who about whose good faith there is no doubt.

[82] If a proprietor of a wood uses the wood for pleasure by walking in it there might well be circumstances in which that would be sufficient to establish possession. Reference to the mental element is necessary to distinguish such actings carried out as owner and not in virtue of some other right such as exercise of a right to roam. However, we are not persuaded that the mental element necessary to establish possession as owner requires “good faith”. As we have seen this is not easily defined in the present context. But if a person understands that the effect of the law is to make him owner of land and he acts as if he was, we are entirely satisfied that is sufficient mental element to give his actings the character of possession.

[83] Where there is no clearly identified physical unit to be possessed some form of physical activity is required to demonstrate possession of the specific area in dispute: Tesco v Safeways. Boundary lines on a plan has no independent status. In the present case the defenders conceded that the line through the stables and garden was wrong. Accordingly it simply ceased to exist as a boundary. Mr Horrell was not entitled to assume that the proper boundary lay close to the erroneous one. There was no identified unit to possess. The activity required to possess specific areas need be no more than is appropriate to the nature of the subjects and the circumstances of the proprietor. Although gathering timber for firewood could be carried out in circumstances where there was no thought of ownership, we are satisfied that such an activity is evidence of possession of the area in question when carried out by the owner.

[84] We are satisfied that the defenders are not entitled to rely on any activities related to the disputed area prior to their receipt of the Registered title plan. They could not have had the necessary mental intention to possess when they had no good reason to think that they owned that area. However we accept Mr Horrell’s evidence that after September they acted on the faith of the Register. We accept that his activities were consistent with that reliance and were not deliberately contrived to establish possession. He showed us a video of activities on the undisputed land near the disputed land. It would have been very easy for him to go into the disputed area on that occasion and contrive a video record had he been acting in bad faith to establish possession surreptitiously.

[85] We accept that he was in the disputed area on several occasions collecting wood for his log pile. Although the appellants had never seen him there they accepted that it was possible that he had been and that he had collected fallen timber. Mr Astell’s evidence that he saw no signs of movement of timber seemed based on the view that if there was any significant movement there would have been signs of clearance of growing vegetation. He said that contractors would clear a way. But we accept there might be little evidence of an individual simply gathering fallen wood. We also accept Mr Horrell’s evidence that he cleared brushwood from that area and burned it or stacked it for burning on a bonfire stack within his undisputed ground. It was not suggested that the bonfires were carried out purely for fun. They were to dispose of unwanted brushwood. Collection and disposal of such material is an act of possession by a proprietor.

[86] We also accept his evidence of the pruning of trees to clear the line of the deerpath into the wooded area. Pruning is also an act of control. There is no dispute that he planted a row of saplings within the disputed area. He had only planted 11 but he had bought 30 saplings. He said he intended to plant along the dyke but he stopped because of the note from Mr Gray. He had then to plant the rest in the field temporarily as they were bare root plants and needed to go somewhere. Planting saplings is plainly an act of possession. The intention to plant the rest is indicative of his assumption that he had a right to do so. He must have realised that the green tubes would be obvious to the appellants. We do not accept Mr Howie’s submission that the appellants’ challenge has any bearing on the inferences to be drawn from the completed planting. It does not appear to us to be of any significance whether the defenders started planting in January and were prevented from completion by three weeks of snow or whether they planted all 11 saplings at much the same time. But we accept the evidence that the work was indeed spread over a three week period.

[87] Mr Horrell said he also had done good deal of work clearing the field ditch. Timber from this had been piled on ground on top of the wall and then taken to the defenders wood-pile of bonfire stack. He had a right to trim overhanging branches. Using the disputed land as a convenient way of getting the wood back to his own ground for disposal would not necessarily be indicative of possession of the land. He was plainly acting to carry out maintenance of his field drain. The use of the disputed land was incidental to that. Having regard to the relaxed approach to boundaries taken on the estate, such actings would not necessarily be indicative of any assertion of possession of the land at the top of the wall. However, we accept that where a proprietor has used his land in this way such actings are properly to be regarded as acts of possession. These various activities are wholly consistent with and supportive of Mr Horrell’s evidence that he regarded himself as taking possession of the land as an owner. Although we have carefully noted Mr Horrell’s evidence as to where these activities took place and our ultimate decision will require to be based on evidence already given, we shall not make more precise findings until after a site inspection.

[88] We have had greater difficulty in assessing the weight to be given to his assertion of a visit to clear the ditch within the disputed area. This initially came in response to a question about an area of rhododendron described on the plan produced by the defenders’ surveyor as “Inaccessible – dense undergrowth”. The plain implication was that exercise of physical possession would not have been taken in that area, although it is fair to say that Mr Gray demurred at the suggestion that this area was impenetrable. In any event Mr Horrell explained that he had found a way through it to clear the ditch. There was nothing in the written witness statement referring to clearing that ditch. Clearing a ditch would be a clear act of possession. It is the act of an owner. We found it surprising that it came up in such an apparently casual way when the defenders’ agent had made it clear throughout that they realised that possession was the critical issue. Mr Horrell said he had removed about ten branches from the ditch. The unchallenged evidence of Mrs Gray was that her husband routinely cleared large branches from that ditch. We shall require assistance in identifying on site visit where this is said to have taken place before reaching a concluded view on this point.

Conflicting possession

[89] Mr MacDonald did not attempt to contradict Mr Howie’s contention that there could not be two possessors at once. But his submission was that the only relevant question was the evidence of the defender’s possession. We are not persuaded that any weight can be given to the supposed principle that there can be only one person in possession of subjects at a time: this depends on the meaning required by the word “possession” in a particular context. A tenant may be said to be in possession of subjects when they are still possessed by the landlord. Subjects may have two proprietors each of whom can be in possession: Kaur v Singh (no 2) p 190 B-C. As the Tribunal observed in McCoach: “It is no doubt normal where issue is taken on this point for the “true” owner to dispute the proprietor’s possession on the basis of his own involvement with the subjects. Although the issue is whether the registered proprietor was “in possession”, the parties competing claims on possession will inevitably have to be considered.”

[90] This is consistent with the observations of Lord Rodger in Kaur v Singh at 194A – B where, after referring to the need for open and peaceable possession for the purposes of prescription, he said of possession under sec 9: “It comes into play only in the situation where the person seeking rectification may ex hypothesi have a better title to the land than the proprietor whose name appears on the register. Possession is then relevant, not because it shows that the registered proprietor has a better claim to the title, but because for reasons of policy, the law chooses not to disturb the proprietor who is in possession. In this context the role of possession is as a criterion for choosing whether the person seeking rectification of the title should succeed or on the other hand should fail and have to rely on an indemnity for his loss from the Keeper under sec 12.”

[91] It is clear that there are many circumstances where there may be clear evidence of acts of possession by different parties. Unless the actings of one have the effect of altering the character of the other’s actings each may be able to point to such evidence as justifying an inference of possession. If the defenders can demonstrate their possession that appears to us to be all that the statute requires. It may be observed that one feature of such a conflict is that the appellants could not possess as owners while title lay with the defenders. There is no question of a potential conflict as to the identity of the “proprietor in possession”. There is only one proprietor.

[92] In relation to the appellants we are satisfied that the change in title to the defenders means that no reliance can be placed on the appellants possession prior to 2012. We are concerned with possession after the defenders acquired title. In their written witness statements the appellants said very little about their use of the disputed area in the winter months. There was reference to a habit of inspection but no evidence of any inspection on any identified occasion. This is unsurprising. They did not expect to have to prove anything and we accept that their evidence establishes that they did walk round the disputed area in an exercise of possession on more than one occasion in the relevant winter months. In her evidence Mrs Gray made reference to her regular practice of walking her dogs in the wooded areas round the house. However, she very candidly admitted that she did not walk through the woods with them. She would usually stand in an area near the stables but not in the disputed triangle. Although it would not have been surprising to learn that she occasionally had to go into the disputed area to retrieve them or even that she did so for purely for her own enjoyment, she did not say this. She referred to collecting wood from the whole area for bonfires but any bonfires in 2012 or 2013 were not within the disputed area.

[93] But in any event there was no evidence of any conflict with the defenders other than the incident of meeting the relatives and accordingly nothing to change the character of their actings. For present purposes we consider that no weight should be placed on evidence of actings after the Note but, as we have said, the challenge after the planting did not change the quality of the act of planting. The defenders did not attempt to rely on any actings after the Note and we need not express any view as to definitive dates as a matter of law.

[94] On a proper view of the whole evidence, it may fairly be said that both parties exercised a type of physical possession of the disputed triangle in the period from September 2012 to February 2013. Both had a mental intention to possess the disputed area. We accept the contention that Mr Gray’s mental and physical possession can properly be treated as extending to the whole of the disputed area. He knew where his eastern boundary was. It was part of his subjects as clearly delineated on his Sasine title. However, in our view the effect of sec 9 is to direct attention to the Horrells’ physical possession. We are satisfied that they exercised possession and control of parts of the disputed triangle in a manner and to an extent consistent with the nature of the subjects. As the appellants’ own evidence demonstrates little is to be expected by way of use and enjoyment of this type of woodland area, at least in winter months. In the present case we think that the defenders have established a greater degree of possession than the appellants in the sense that they established positive physical use of the land. But we are satisfied that in assessing the defenders status for the purposes of the section, it is unnecessary and inappropriate to attempt a comparison with the extent of possession established on the part of the “true” owner.

Conclusion

[95] For the reasons discussed above we have concluded that the defenders did have possession of part or parts of the disputed subjects. Although we understand that there has been some strimming and clearing by Mr Gray since the interdict proceedings and this may have changed the appearance of the area in some respects, we are satisfied that we would be able on inspection to identify on the ground the areas spoken to by Mr Horrell, some of which were shown in photographs, although it may be necessary to take a fairly broad approach.

[96] However, it seems clear to us that a better course would be for the parties now to attempt to agree a line. Whatever the precise extent of possession established by the evidence it will in a sense be accidental in scope. It would seem that Mr Horrell would have an interest in maintaining the whole wall between A and C as that is his field boundary. He may, on the other hand have little real interest in taking responsibility for the spruce tree and ensuring that it does no harm to the appellants’ property. He can enjoy it without owning it. It is not easy to see a positive benefit to him from taking responsibility for the ditch within the disputed area. The appellants must now recognise that some adjustment must be made and a practical solution may be possible.

[97] We do understand that negotiation may be difficult if the appellant wishes to appeal our decision but it might be possible to reach agreement on a conditional basis. We would hope that even if there is to be an appeal it might be possible to agree the alternative boundaries but we recognise that if there is an appeal the parties might wish us to make a finding as to the boundary. If so, plainly any conditional agreement that might be reached should not be disclosed to us. We also recognise that the Keeper may have an interest in the matter as both parties will have suffered loss either through rectification or non-rectification. We aim to make a concluded decision before 14 October – when Lord McGhie retires - although any purely formal matters could be attended to after that if necessary. We shall make arrangements for a site visit at about the end of September if no agreement has been reached before that time.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 27 August 2014

Neil M Tainsh – Clerk to the Tribunal