Lands Tribunal for Scotland

OPINION

Wendy Campbell-Gray
v
The Keeper of the Registers of Scotland
and
Michael Doherty and Deborah Wyton

[1 ] This is an appeal under section 25 of the Land Registration (Scotland) Act 1979 (“the Act”) against the failure of the Keeper to rectify, under section 9 of the Act, the registered title of the interested parties. The appellant owns three parcels of land under a Sasine title. The interested parties own a farm on a title which comprises the remainder of an estate. It is a registered title. The appellant contends there are overlap areas with her title. These disputed areas are specified in plans produced by the Keeper. Essentially they are small strips of roadside verge along the access road through the estate. The disputed areas lie between the appellant’s property and the tarmacked carriageway of the access. The Keeper accepts that two of the disputed areas, (“the yellow areas”) are erroneous and should not form part of the interested parties’ registered title. The Keeper now does not accept that the other disputed areas are incorrectly shown on the interested parties’ title and, moreover, has been unable to determine an issue of competing assertions of possession. The main issue is nevertheless whether the Register is inaccurate in respect of the disputed areas. The interested parties concede that only part of the yellow areas should be excluded from their title. The accuracy question subsumed an issue whether the appellant was able to fortify her Sasine title boundaries by prescriptive possession. As matters transpired there was only minor argument whether if the Register was inaccurate the interested parties were proprietors in possession who would be prejudiced by rectification.

Statutory provisions

[2] Section 9 of the Act provides inter alia as follows:

“9 – (1) Subject to subsection (3) below, the Keeper may, whether on being so requested or not, and shall, on being so ordered by the court or the Lands Tribunal for Scotland, rectify any inaccuracy in the register by inserting, amending or cancelling anything therein …

(3) If rectification under subsection (1) above would prejudice a proprietor in possession – (a) the Keeper may exercise his power to rectify only where – … (b) the court or the Lands Tribunal for Scotland may order the Keeper to rectify only where …”.

Section 9(3) and following provisions define circumstances in which rectification is competent notwithstanding prejudice to a proprietor in possession. No such circumstances have been claimed in this appeal.

Section 25 provides inter alia as follows:

“25 – (1)… an appeal shall lie, on any question of fact or law arising from anything done or omitted to be done by the Keeper under this Act, to the Lands Tribunal for Scotland”.

Section 1 of the Prescription and Limitation (Scotland) Act 1973 provides:

“(1) If land has been possessed by any person, or by any person and his successors, for a continuous period of ten years openly, peaceably and without any judicial interruption and the possession was founded on, and followed–

(a) the recording of a deed which is sufficient in respect of its terms to constitute in favour of that person a real right in–

(i) that land; or

(ii) land of a description habile to include that land; …

then, as from the expiry of that period, the real right so far as relating to that land shall be exempt from challenge.”

Authorities referred to

Sim v Stewart (1827) 5 S.841.
Ure v Anderson, (1834) 12 S. 494
Fleming v Baird, (1841) 3 D. 1015
Paterson v Carnegie, (1851) 13 D. 997
North British Railway Co. v Moon’s Trustees (1879) 6 R. 640.
Keith v Smyth, (1884) 12 R. 66
Louttit’s Trustees v Highland Railway Company (1892) 19 R. 791
Johnstone v Meikle and Murray (1901) 9 SLT 74
Logie v Reid’s Trs., (1903) 5 F. 859
Houston v Barr, 1911 S.C. 134
Troup v Aberdeen Heritable Securities Co., 1916 S.C. 918
Mags. of Hamilton v Bent Colliery, 1929 S.C. 686
Harris v Wishart, 1966 S.L.T. 12
Anderson v Harrold, 1991, SCLR 135.
Suttie v Baird, 1992 SLT 133.
Hamilton v McIntosh Donald Ltd., 1994 S.C. 304
Butt v Galloway Motor Co. Ltd., 1996 S.C. 261
Stevenson-Hamilton’s Exrs. v McStay (No. 2), 2001 S.L.T. 694
Tesco Stores Ltd. v Keeper, 2001 S.L.T. (Lands Tr.) 23
Rutco Inc., v Jamieson, 2004 G.W.D. 30-620
Safeway Stores v Tesco Stores., 2004 S.C. 29
Harris v Wishart 1996 SLT 12.

Textbooks referred to

Gordon & Wortley, Scottish Land Law (3rd ed.), paras. 3.06, 3-08, 3-36, 12-27, 12-30, 12-34, & 12-35
Halliday, Conveyancing Law & Practice (2nd ed.), paras. 33-11 & 33-13

Procedure

[3] The appellant lodged grounds of appeal in November 2013 once the Keeper had declined to rectify the register. The Keeper lodged answers containing the following:

“The Keeper is satisfied that there is inaccuracy in the Register in respect of the area coloured yellow on the Title Plan … In respect of the areas coloured green and red on the title plan the Keeper does not consider that it has been demonstrated that there is an inaccuracy in the Register.”

Her answers further contained a submission to the effect she was unable to adjudicate between conflicting claims of possession. A hearing was held in Oban on 18 and 19 November, a site visit was held on 20 November and closing submissions were heard in Edinburgh on 2 December 2014. The appellant was represented by Mr Michael Upton, advocate. The interested parties were represented by Mr James McKeown, solicitor. The Keeper did not attend the hearing. The appellant gave evidence and called as witnesses Michael Robertson, Ms Irene Wilkie, Ms Aileen Macphail, Martin Douglas-Reid, Robert Knight, Lorne Nelson and Robert Campbell-Preston. The interested parties gave evidence themselves.

Background

[4] The appellant and her late husband acquired three parcels of land in 1985. These comprise a house and gardens named Fanamor, Taynuilt, Argyll, a large field to the north of the house and a dwellinghouse known as the gatehouse or the cottage (“the cottage”) situated opposite the north section of the field. These subjects had been part of the Fanans Estate.

[5] The above property was first split off from the estate in 1980. The then estate owner was a Mr Fleming. He disponed the land by means of two dispositions each recorded GRS (Argyll) 21 April 1980. The first disposition (“folio 116”) disponed to a Mr Coates the house and gardens and the other (“folio 121”) disponed to Mr and Mrs Coates the field and cottage. These dispositions are referred to in the relevant descriptions within the disposition by Mr and Mrs Coates in favour of the appellant and her late husband, recorded GRS (Argyll) 12 November 1985.

[6] The folio 116 disposition describes the piece of ground as extending to 2.51 acres or thereby and, regarding the west boundary:

“… bounded … generally on or towards the west by the access road leading to inter alia the said subjects hereby disponed from the main Taynuilt to Dalmally public road along which it extends following the angles thereof One hundred and thirty nine metres or thereby; … All as the said subjects hereby disponed are delineated and outlined in red on the plan annexed and subscribed by me as relative hereto; …”

[7] The plan annexed to the disposition shows the subjects outlined in red and specifies the boundary measurements and area above referred to. It is a 1:2000 scale plan. It is identical to the plan annexed to the folio 121 disposition.

[8] The folio 121 disposition in respect of the field conveyed, in the first place, a piece of ground extending to 9.81 acres whose description includes the following:-

“… bounded … generally on or towards the south west by the access road leading to inter alia the subjects known as Fanamor from the main Taynuilt to Dalmally public road along which it extends following the angles thereof Four hundred and Sixty three metres or thereby …”

In respect of the cottage it conveyed, in the second place, an area or piece of ground extending to 0.313 acres:

“… bounded … generally on or towards the north east, east and south east partly by the said access road and partly by other subjects belonging to me along which it extends following the curve and angle thereof One hundred metres or thereby; and on or towards the south west by said other subjects belonging to me along which it extends Eighty six metres or thereby; …”

The folio 121 disposition continues:

“… all as the said subjects In the First Place and In The Second Place hereby disponed are shown delineated and outlined in green and blue respectively on the Plan annexed and subscribed by me as relative hereto.”

The plan annexed shows the large field outlined in blue lying immediately to the north of Fanamor. The plan also shows outlined in blue the cottage subjects lying to the west of the access road, opposite the northmost point of the large field. The plan specifies the same boundary lengths and the areas which are specified in the disposition. No point was taken that the colour in the plan, at least in the version supplied to the tribunal, is in fact blue rather than green and blue.

[9] Each disposition gave a servitude right of access to the subjects in similar terms as follows:-

“Together also with (First), an heritable and irredeemable servitude right of access to and egress from the said subjects for traffic of all kinds over and across the said access road hereinbefore referred to, all as presently existing, together with a right at the expense of my said disponee and his foresaids to make up, maintain, and if necessary improve the same in all time coming …”

The dispositions have standard provisions as to sharing the expense of maintenance of the access road with others entitled to use it, but in respect of any upgrade by the disponee and foresaids, those parties would be responsible for any additional cost involved in maintenance.

[10] The dispositions also provide for heritable and irredeemable servitude rights to discharge the drainage from both the house and cottage and further state:-

“… and otherwise all in the manner as presently existing, with a servitude right of access to the drainage system insofar as the same may lie outwith the said whole subjects hereby disponed and insofar as I may competently grant such right over adjoining lands on all necessary occasions for the purposes of inspection, maintenance, renewal, improvement or repair thereof in all time coming subject to my said disponee and his foresaids making good any damage caused in the exercise of such right …”

[11] On acquisition of her subjects the appellant proceeded to treat sections of the verge of the access, as she put it, as her own property. Amongst other things she kept the verge adjacent to her property mown and free of overhanging branches and the like. We discuss this in more detail below. In 2008 Fanans Estate came up for sale. Sales particulars were produced. The appellant noted that the accompanying plan indicated that the estate purported to retain the verges adjacent to her property up to the edge of the “road,” in the sense of retaining the verges at the edge of the tarmacked carriageway as well as the carriageway itself. The matter was taken up by her solicitor with agents for both the estate and prospective purchasers. There was concern there could be ransom strips. By letter dated 20 November 2008 the estate owners’ solicitors took the view that the sale plan matched the legal extent shown in the appellant’s title and therefore the sale plan was not purporting to sell any land which was owned by the appellant. As matters transpired the sale in 2008 fell through. The sellers’ solicitor indicated that the 1980 dispositions would be submitted to the Keeper at the point of any registration in order to clarify the boundary, but did not depart from their position in the letter.

[12] The interested parties acquired Fanans and took entry on 11 December 2009. The property was first entered in the Land Register on 13 January 2010. Fanans is now solely a farm. It comprises approximately 101 hectares including a steading and cottage. The land is to the south and west of the access road as well as the road itself. Their steading and cottage is a short distance to the south of Fanamor along the access road. It can be seen from the registered plan that their land adjoins the appellant’s land in many places. A cottage and building plot elsewhere on the estate were being retained by the sellers at this time which would also require to use the access road.

The Overlap Areas

[13] The registered title plan is similar to the sales particulars plan of 2008. It shows the interested parties’ property in pink and brown. The appellant’s property is shown in blue and hatched blue. The disputed areas can be seen shown pink between the brown access road and the appellant’s property. The appellant applied for rectification on 15 September 2011. The Keeper wrote to the interested parties’ solicitors on 25 October 2011 referring to inaccuracy in their title, and produced more detailed plans intended to show the disputed areas in more clearly. We infer the detailed plans are also based upon the Ordnance Survey. In particular reference was made to yellow and red areas in “print 1” adjacent to the cottage and north of the field and to green and red areas in “print 2” adjacent to Fanamor. The dispute emerged at about this time. There appears to have been an unfortunate incident involving the appellant and first interested party, which we do not detail here. Thereafter parties commendably avoided escalating the situation and did not resort to self-help.

[14] The print 1 yellow areas of the Keeper’s plan comprise two parts of the eastern edge of the cottage subjects. It is accepted that the northern yellow area and possibly the southern yellow area is too wide, or at least the plan is incorrectly drawn because the yellow area(s) include some of the cottage’s garden in the Fanans title. This can be deduced because the yellow area on the plan cuts across the garden hard to the cottage at the north east corner of the building, whereas on the ground there is a portion of enclosed garden there. Thus by inference the yellow area(s) have either incorrectly traversed the cottage’s garden wall and/ or fence into the garden or the proportions in the plan are wrong. However, and not conceded as an error, the yellow areas also include verge between the tarmacked surface of the access drive and the stone wall and fence of the cottage garden. The verge beside the cottage includes a fairly deep and flowing drainage ditch. It is otherwise a conventional grassy strip whose width is generally a few feet wide. There are a few trees growing on the verge.

[15] The print 1 red area comprises the roadside verge on the opposite side of the access road from the cottage, adjacent to the appellant’s field. It is fenced off from the field. Its width varies but at its widest it is about 4.5m wide where there is a bend in the road and corresponding elbow in the fence. It is grassy and contains a few trees running along the side of the fence. It contains a shallow depression although not a ditch as such

[16] The red areas of print 2 are at the southwest boundary of Fanamor. There is a triangular area and, just connected at the south of the triangle, an irregular/ semi-circular strip of ground. The triangular area is formed by a line from the access road along the front of an old boathouse and then extending along a fence, and then turning back towards the road along a hedge. The Keeper’s plan appears to follow features, which from our own observations and measurements appear to be those just described above, although those features are unnamed appearing only as markings in the Keeper’s plan and the Sasine plan. But for example it does appear that the depth of the triangle taken from along the front door of the boathouse and continuing along the fence to the hedge is approximately 9m on the ground. This is roughly consistent with scale measurements both in terms of the Keeper’s ordinance survey based plan and the folio 116 disposition plan. If the distance were to be measured to a point where an old wall had existed roughly parallel with the hedge, we inferred from the line of two stones said to be the remains of the wall, the 9m would reduce to about 4.5m. So we do not think the boundary feature in the disposition plan was the old wall, if indeed much of it existed in 1980. The triangular area is flat and easily large enough to park a car or use as a layby. It is presently grassed over. An aerial photograph from 1974 however shows that much of it had been bare of grass and possibly contained hardstanding. The first interested party had dug into this area and found hard ground. The red irregular/ semi-circular strip area lies between the western side edge of the boathouse and the tarmac of the access and continues south beyond the side of the boathouse along a gate and thence along an undefined line. At the very south this verge area is several feet above the tarmac surface.

[17] We think the disputed areas can, for the most part, be described as typical roadside verge on an estate access. At this point however it is convenient to deal with an argument by the appellant that on the evidence the red triangular area had only been used in association with the boathouse and for parking by the owner of Fanamor, and could not naturally be of use to anyone other than the owner of Fanamor. We disagree. The carriageway is narrow and there are few passing places for normal vehicles. The verge is uneven in places. Two episodes were mentioned of vehicles going into the ditch. The ditch exists at various points along the access although it does not lie, we accept, immediately adjacent to the red triangle. The triangular area is however at bend in the access where sightlines are limited. We think that this area, were it to be cleared of stones along the edge, could also fairly be described as a passing place, albeit a large one, and therefore part of the verge of the road.

[18] The main entrance to Fanamor is at a “Y” junction with the access road. The access into Fanamor is essentially a straight line spur from the access road. There is a cattle grid, main gate and a side kissing gate at the entrance. The green area is a small area of ground which includes the entrance area outside the gates and that part of the “Y” comprising the access spur and verge between the spur and the appellant’s field. The green area then extends southwards comprising the verge between the tarmac of the access road and the boundary hedge, wall and fence of Fanamor itself.

The titles

[19] The appellant and interested parties derive their titles from the same Fanans estate titles. Parties accepted that whether the disputed areas can be carried to the interested parties so as to be accurately entered in the Land Register depends upon whether those areas had not already been disponed by the estate to the appellant’s predecessors in 1980, and whether any title of the appellant had been fortified by prescriptive possession. This gives rise to issues of interpretation of the two 1980 dispositions in favour of the appellant’s predecessors, which gave rise to argument we shall discuss later.

Evidence of Prescriptive Possession by Appellant

[20] The appellant and her witnesses gave evidence of the appellant’s possession of the disputed areas. She and her late husband had acquired the property in 1985. The appellant had mown the grass verge on both sides of the road with a ride on mower. Her gardener had done so, but only on the appellant’s side of the road, with varying regularity from about 1996 until about 2009. Both had used a strimmer on the verge adjacent to the appellant’s property. The appellant’s tenants of the cottage from 1993 until 2012 had maintained the grass in front of the cottage. The appellant and her gardener had cut back overhanging vegetation and tree branches on to the verge at both the cottage and house. The appellant had been a keen gardener and wished to maintain the appearance of her house and cottage. She had also been a keen rider. When riding competitively between 1984 and 1996 she would make her horsebox ready the evening before an event and park it on the red triangle area, in front of the boatshed where fodder was stored and unloaded. The horsebox was usually kept elsewhere when it was not being used. The appellant weeded and dosed with weed killer the green area. She had got on well with the estate owner Mr Fleming who lived on the estate until 2000, and thereafter his successor Mrs Hayes who visited about once a year from Australia. They were generally aware of her activities. The appellant and her gardener had cleared the ditch at the yellow area regularly. The ditch receives significant amounts of water and the cottage was prone to flooding. In about 2002 there was an accident in which a crane drove into the ditch outside the cottage. Both the appellant and Mrs Hayes were involved in arrangements for the repair to the road and ditch which was carried out by a local contractor and paid for by the third party who had caused the accident. A small wooden barrier was erected at the locus which we understood was intended to prevent a future accident. In about 2006 the appellant’s cottage tenant Mr Coupe had placed a wider pipe under the cottage access at which location the pipe is a conduit for the ditch. Mrs Hayes was informed of this operation. A year or two later at the red area opposite the cottage Mr Coupe placed a wooden bridge across the small depression or indent in the verge to what we took to have been an existing access at the field fence. This was so Mr Coupe could take access to a wood shed in the appellant’s field. Mrs Hayes was also aware of this operation. The appellant also placed various stones along the verge. There had been a large stone and possibly more at the Y-junction to the house at the green area in 1985 along the spur, in order to guide vehicles through the entrance. The appellant and her gardener subsequently placed more stones there, we understood for that reason, and along the side of the verge of the green area. She and her gardener also placed stones along the side of the red triangular area. We understood the appellant to indicate that she had instructed the stones at the edge of the verge to require vehicles to move to the other side of the road thereby to improve a sightline, and no doubt also to prevent the verge being damaged by tyre tracks. The appellant could not recollect the date, saying it was after 1996. Mr Douglas-Reid the gardener indicated he placed the stones in the print 2 red and green areas about three years ago i.e. about 2010/ 2011, at the appellant’s request. The second interested party had no recollection of the stones being in existence when Fanans was acquired in 2009. There had been a subsequent incident when a lorry travelling to Fanans she believed had tried to avoid the stones at the verge of the green area and went into the ditch at the other side of the road, at which time she became aware of their existence. The photographs showing the stones had been taken in 2011. We therefore infer that the stones (other than one or perhaps more at the house entrance) were placed at a date between 2009 and 2011.

Parties’ submissions

Appellant’s Submission

[21] It was accepted that the correct approach was to ascertain the land disponed by the estate owners to the appellant’s predecessors by reference to the two 1980 dispositions. The critical wording in each was that the subjects were, at the relevant locations, “bounded … by the said access road …” It is settled law that “bounded by” something means that the something is excluded from the title. Where a private access road or driveway is identified as the boundary it was submitted that what is conveyed is the ground up to the metalled edge of the carriageway. Reference was made to Gordon & Wortley 3-35 and 3-36 referring to the boundary as the “edge” of a road and Halliday’s Conveyancing Law & Practice 33-11 referring to the solum of the road being excluded. Reliance was placed on Butt v Galloway Motor Co Ltd where the Inner House held that bounded by a “driveway” meant the edge of the driveway and not a hedge alongside it. Reference was also made to Johnston v Meikle where the title of a field “bounded by a road” meant a wall was included in the title and did not belong to the owners of the road.

[22] The triangular area did not appear to be a natural part of the road on account if its shape. If the shape of the features of the appellant’s property had been intended to be the boundary, the draftsman could have said so – for example by referring to the outer face of the boathouse, fence, hedge etc. It was also odd that the boatshed’s door(s) would open out onto the red triangle which was inconsistent with exclusive ownership of the red triangle by another party. Other areas such as the entrance area – for example beyond the front gate, in effect had been dedicated to the exclusive use of the appellant’s subjects. There would be no practical reason to reserve it to the estate.

[23] It was accepted that under section 151 of the Roads (Scotland) Act 1984, for the purposes of the Act the definition of a public “road” included the verge. The present access was not a public road so the Act did not apply. In any event the enactment of the definition post-dated the descriptions in the deeds by four years. The matter had been sufficiently doubtful to require the legislature to clarify the position.

[24] Counsel submitted that the plan was of a scale such as the boundaries were uncertain. It was submitted that there had been a wall approximately parallel with the hedge in the triangular area and it was probable that this had been the boundary in 1980. It was submitted that for much of the green strip, the plan could represent the boundary either as the edge of the carriageway or the wall and fence immediately to the east. North of the main gate, the plan could be taken to represent the boundary as either the fence or the edge of the carriageway and the same could be said for both sides of the road at the cottage. It was submitted that there was inconsistency between the plan and the wording of the deed, and that this was particularly apparent regarding the red triangle. As a matter of principle the wording should prevail. Reference was made to Paterson v Carnegie and Keith v Smyth where the plan was said neither to be taxative nor demonstrative. Reference was also made to Rutco Inc v Jamieson and Halliday at 13.13 where the author states:

“Where boundaries (i.e. ‘as described in the deed’) and measurements or plan (neither being stated to be taxative) conflict the boundaries, if clear, prevail the measurements or plan being held to be demonstrative. So if the boundaries are clear, a greater area specified by measurements which are not taxative will not convey more than that enclosed by the boundaries, nor will a lesser area in the measurements limit that within the boundaries.”

It was submitted that as the verbal description was clear any inconsistencies with the plan were irrelevant.

[25] The appellant put forward a separate argument to the effect that she had a habile title to include the ground up to the tarmacked carriageway. Positive prescription could therefore be invoked in terms of section 1 of the Prescription and Limitation (Scotland) Act 1973. All that was necessary was for a reasonably possible construction of the titles to exist so as to include the ground up to the carriageway. Reference was made to Hamilton v McIntosh Donald Ltd, Troup v Aberdeen Heritable Securities Co, Rutco Inc v Jamieson and Suttie v Baird. Counsel founded upon the words of the Lord Justice Clerk in Auld v Hay, which had been relied upon by the Inner House in Suttie v Baird and by Lord Kingarth in Rutco

“A habile title does not mean a charter followed by sasine, which bears to convey the property in dispute, but one which is conceived in terms capable of being so construed. The terms of the grant may be ambiguous, or indefinite, or general, so that it may remain doubtful whether the particular subject is or is not conveyed, or, if conveyed, what is the extent of it. But if the instrument be conceived in terms consistent with and susceptible of the construction which would embrace such a conveyance, that is enough, and forty years possession following on it will constitute the right to the extent possessed.”

[26] Counsel further relied upon the following passage from the Lord Justice Clerk in Auld v Hay:

“The effect of 40 years’ possession on a habile title is not, in any accurate sense, to construe the title. Its effect is to establish the right. It is of no consequence what the true construction of the title may be, as long as it is susceptible of a construction consistent with the prescriptive possession, and when that has run, it is the possession, not the words of the charter, which establishes the right.”

[27] Counsel emphasised the point that the “true construction” was “of no consequence”; all that was necessary was for the title to be susceptible of a construction consistent with prescriptive possession. Counsel accepted that where there was a bounding description it was a question for decision by the court in each case whether there was a sufficiently precise description to exclude variation, or whether scope had been left for further definition, or for alteration by possession or actings. Reference was made to Gordon & Wortley3-06 and Ure v Anderson.

[28] In this case it was submitted that the title was susceptible to a construction so as to include the verge up to the tarmac carriageway. There had been possession for over the prescriptive period of 10 years in terms of the 1973 Act. It was necessary to consider possession having regard to the character of which the thing is capable, which in this case were on the fringes of other subjects and of no great utility. Reference was made to Hamilton v McIntosh Donald Ltd in which the Lord Ordinary had held that relatively few acts of possession could amount to continuous prescriptive possession in rural subjects. That had been a narrow case but had been upheld by the Inner House.

[29] It was submitted that the appellant had been clear that her acts of possession had been on the understanding that she was an owner, for example she did not think that she had to ask permission to place the footbridge over the verge. Moreover in October 2008 she had protested as to the sale plan of the estate which indicated a mental element of possession. In conclusion there was a habile title and prescriptive possession for all the disputed areas which required to be recognised by the Keeper.

[30] It was submitted that the interested parties were not proprietors in possession for the purposes of section 9(3) of the 1979 Act, so as to be prejudiced by rectification.

Submission for the Interested Parties

[31] It was submitted that it was clear that the plan annexed to the 1980 dispositions defined the boundary. The coloured boundary comprised identifiable features namely the fence and wall of the appellant’s property. The appellant had a servitude right of access over the verge as part of the road which, in any event, was not disputed had been established or fortified by prescriptive use. Reference was made to Sim v Stewart and North British Railways Trustees v Moons Trustees for the proposition that in a bounding title, the verbal descriptive boundaries must give way, if there was discrepancy, to the measurements and plan. Where, as in Anderson v Harold, the verbal boundaries and plan conflicted but measurements were given, the boundaries or plan are preferred according to whether one or the other are supported by the measurements. Reference was also made to Suttie v Baird. Here, the appellant had not established that the area and distance measurements mentioned on the plan and in the dispositive clause were inaccurate or more consistent with one interpretation or the other. The measurements had not been called into dispute.

[32] Furthermore it was noteworthy that the description of the boundaries in the deeds referred to both “angles” and “curves” at different locations. However, where the subjects were bounded only by the access road reference was made to “angles”. “Angles” was more consistent with the boundary features, rather than the hard edge of the access road which tended to curve.

[33 ] The interested parties did not oppose rectification in respect of those parts of the yellow areas which were within the cottage garden so that in effect the boundary was the outside face of the wall or fence. They did not accept that the appellant’s title included the verge of the road.

[34] Turning to the red triangular area it was clear that the 1980 disposition plans did not follow the curvature of the road but that the boundary was angular. This was clearly inconsistent with the edge of the tarmac being taken as the boundary. It was submitted that the title could not include the subjects in dispute because the exact boundaries were specified by the plan in particular. Moreover, the Keeper’s answers indicated that the green and red areas did not lie within the areas of ground delineated on the plans next to the two dispositions.

[35] The interested parties further submitted that in the case of public roads, a public “road” by statute included its “verge”. There was no clear authority regarding a private access road. However ownership of the verge was important for repair and maintenance of the road and if the verge did not go with ownership of the road there would be likely to be issues regarding repair and maintenance. A common sense approach is required and it was implicit that a verge should form part of the road. This common sense approach was carried forward in respect of certain other properties sold off from the estate in which it was apparent that the verges were retained by the estate.

[36] It was submitted that there had been no concession by the estate in 2008 that the verges had been sold to the appellant. There was no suggestion that the 1980 deeds were not delivered for consideration by the Keeper and formed part of the application for registration.

[37] It was accepted that there may have been prescriptive possession for the purposes of establishing a right of access over the verge, but it was not accepted there was such possession to establish ownership.

[38] There was an argument that there had been some possession by the interested parties of the green area, or a small part of it, in terms of section 9(3) of the 1979 Act.

Tribunal’s Consideration

The Titles

[39] We agree that the starting point in this case is the 1980 dispositions in favour of the appellant’s predecessors. If the estate had disponed the disputed areas to the appellant’s predecessors by the dispositions, or if the dispositions were habile for the purposes of prescriptive possession, and that prescriptive possession has been established by the appellant, then the estate owners could not dispone the disputed areas a second time to the interested parties. Had they purported to do so and had the Keeper accepted the registration, the register would be inaccurate.

[40] The first critical issue is whether there is a bounding title which excludes prescriptive possession of the disputed areas. The formulation of the Lord President in Suttie v Baird at p136 is apt:

“In my opinion the pursuer’s title is a bounding title in the sense that an attempt has been made to identify the property, both in the plan and in the written description, by reference to its boundaries. The question in this case is whether the western boundary can be identified with such precision that the title itself, and not the possession, is the measure of the pursuer’s right.”

[41] In the instant case it is clear that an attempt has been made to identify the property by reference to its boundaries in various ways. Whether the identification is sufficiently precise so as to exclude prescriptive possession of the edges is a matter of interpretation of the titles and comparing matters on the ground. Here there are three parts to the description of the title boundary, namely the verbal description, the plan and the measurements. None is stated in terms to have any priority over the other. We consider each part in turn.

[42] Turning to the verbal description, it is accepted that “bounded by” something generally excludes the something. The issue is what that something is. Here the subjects are “bounded by … the access road”. The question is whether that excludes the roadside verge as well as the tarmac surface and, no doubt, the hard core.

[43] We are not persuaded that the authorities relied upon by the appellant lead to any presumption that verge is excluded from the meaning of a private “road”. In Butt v Galloway Motor Co Ltd the court decided that “driveway” did not include an adjacent hedge. There was detailed evidence as to whether or not the hedge was integral to the driveway. This hedge appeared to have grown up over a long period of years from a number of sporadic bushes whose root systems gradually reached the edge of the drive. It was found not therefore to be integral to the driveway. Moreover, it was a case where the plan was erroneous from which the court does not appear to have obtained assistance. The case concerned a hotel driveway and there does not appear to have been discussion of a roadside “verge” being in existence in the traditional sense, as opposed to the hedge. In the instant case we are dealing with an estate road in which there may have been, as we shall discuss, cogent reasons for not separating the carriageway and the verge. We note that the court in Butt v Galloway Motor Co Ltd considered Louttit’s Trustees v Highland Railway Company and Johnstone v Meikle. In Louttit’s Trustees Lord Adam regarded an argument that “roadway” did not include the path running alongside it to be quite untenable and that where subjects are described as being bounded by a roadway “… It seems to me that every part of the roadway is excluded from the grant.” In Johnstone it was held that a field “bounded by a road” excluded a wall enclosing a field at the side of the road. The road in question was in fact a disused piece of road and was described in the opinion as the “bounds of the old road” and “the road or site of the road”. This does not suggest that a narrow definition of “road” was being contemplated, and it would not follow that just because the wall was excluded from the “road” that any verge within the “bounds” of the road was also excluded. These judgments cannot, we think, be taken to mean that “road” is necessarily restricted to the carriageway and excludes “verge.” If anything it can be argued the decisions point the other way.

[44] Nor are we persuaded that Parliament legislated in 1984 to include “verge” within the meaning of “road” over which there was a public right of passage in order to extend the ordinary meaning of the word “road”. That is not our understanding of how the law developed. The 1984 Act essentially repeated a definition within section 50 of the Roads (Scotland) Act 1970. Absent citation of authority on the earlier common law approach to a public “road” or “highway” we are not prepared to assume verge would have been excluded from the definition. We think that the statute demonstrates that as a matter of interpretation, “access road” is at least capable of including “verge”.

[45] In a case like the present we do not think the estate owners should be lightly taken to have conveyed to a third party the verges of roads being maintained and operated by them. The tarmac carriageway is narrow, being approximately 2.6 – 2.8m wide. It is not wide enough for two vehicles to pass. One of the verges contains a fairly deep ditch which is evidently of considerable utility as a ditch. We heard evidence of vehicles being accidently driven into the ditch on two occasions. If an adjacent owner were to be taken to have acquired the verge and were to appropriate it say by placing a fence hard against the tarmac there would be even less passing room. Pedestrians would have no place of refuge. The opportunity for widening the hard surface would be lost. Roadside maintenance would become more difficult. Similarly we infer the estate would not wish unnecessarily to lose control of the drainage system at the side of the road. We accept that the drain alongside the cottage proceeds to travel under the road, and thence to and under the appellant’s own field. Nevertheless we understood this drain to carry water from a wide area and so the estate would have an interest in maintaining control and integrity of the system so far as possible. It was not suggested that the estate had expressly retained rights over the verge or drains should it be found to have disposed of them. On the other hand, express servitude rights of access had been granted to the appellant’s predecessors in respect of the access road and drainage system on land belonging to the estate which is consistent with these being retained intact, as far as possible, by the estate. A practical interpretation favours the interested parties. We therefore think, looking solely at the words of the dispositions, that they are at least as much in favour of the interested parties as the appellant if not more so.

[46] We now turn to the identical plans annexed to the 1980 dispositions. Our interpretation of the plan is that where the coloured line follows a feature, the boundary follows that feature. It is striking that the red outlined boundary of Fanamor follows the angular lines of, for example, the boatshed, and the fence and wall adjacent to the access road. Although the boundary features are not specified, e.g. as “boatshed,” we think their character can be ascertained by comparison between the plan and the ground. A good example is the southern boundary of Fanamor. The boundary feature is not specified, but on inspection it is apparent that the boundary follows the shape of a burn. To the north, the shape of the blue outline boundary surrounding the cottage and north portion of the field approximate with the shape of the wall and fences there. This is all consistent, and in our opinion clearly consistent, with the verge of the road being excluded from the appellant’s title.

[47] We give limited weight to the interested parties’ argument about the terminology of the access road boundary following “angles” as opposed to “bends” or “curves”. We accept that the folio 116 disposition refers to “angles” and that the relevant boundary of the Fanamor subjects disponed by it is essentially angular. But we note that the folio 121 disposition for the cottage refers to a boundary formed partly by the access road and partly by other subjects belonging to the disponer “following the curve and angle thereof” for one hundred metres. Looking at the plan, the boundary is both curved and angled. The reason we do not think this description refers to the “curve” of the tarmacked surface is not because of any consistency in terminology but because the shapes on the plan are consistent with the shape of the fence and wall of the cottage, and are consistent with the measurements of the fence and wall as we now discuss.

[48] We now turn to the measurements. The area and boundary distance measurements are specified both in the dispositive clause of each disposition and are written on each respective plan. We note that the appellant, although arguing that the titles were sufficiently ambiguous to allow positive prescription, did not in fact offer any evidence that the measurements were inaccurate. Rather, counsel suggested it was for the interested party to show that they were accurate. We are not attracted to this argument, since it is for the appellant to satisfy us that the register is incorrect on the basis that her title is habile to permit positive prescription. This depends upon its being shown that the descriptions contained in the dispositions are in fact ambiguous or uncertain.

[49] The 1980 disposition plans are drawn to a scale of 1:2000. This is a somewhat more detailed scale than the Keeper’s plan of 1:2500, the latter which we understand to be commonly used for the description of rural property. We think a number of conclusions can be drawn from the measurements. In the first place, the tarmac carriageway of the access is less than 3m wide on the ground. To this might be added the additional width of the hard core which at the print 1 red area might extend a further 1m or so. Looking at the folio 121 disposition plan in the area of the cottage or gatehouse, the apparent “fence to fence” distance across the area of the “road” is, on any view, very substantially more than 4m. In other words the plan cannot be showing the boundary as the hard edge of the carriageway. That would not be a reasonable interpretation of the plan in the light of scale measurements. Secondly, the total length of the boundary around the cottage or gatehouse is said to be 100m plus 86m or thereby. As there is no difficulty about ascertaining a setting out position from which to measure a circumference, we checked the measurements for ourselves. As we indicated informally to parties, our own measurements taken from the outside of the fence and wall of the cottage coincided with the above figures. Our measurements were strikingly similar to the stated ones and were somewhat inconsistent with a measurement which would have taken the boundary to the edge of the tarmac thereby including several metres of verge. We estimate such a measurement would have added about 9m to the 186m circumference referred to above. Thirdly in these circumstances, absent evidence, we do not think we can infer that the measurements stated for the western boundary of Fanamor, measured along the boundary features we have mentioned, are incorrect or would be significantly more consistent with a measurement from the edge of the tarmacked surface.

[50] Drawing the threads together, we think this is a case where the draftsman has made a conscious effort to relate the boundaries and measurements specified in the plan to the wording of the disposition. We are satisfied that the words “access road” can be fairly interpreted as including the verge of the access road being the areas in dispute. It is a practical interpretation. That interpretation is consistent with the boundary markings and shapes on the plan. It is consistent with the boundary measurements of the cottage specified in the wording of the deed and written on the title plan. We are not prepared to infer, absent evidence, that to include the verge would be inconsistent with the stated measurements for Fanamor. So we consider the correct interpretation is that the verges were excluded by the dispositions.

[51] We do not think the thrust of some of the older authorities to be of particular assistance. In these cases there was often a clear contradiction between words and plan which could only be resolved by rules of construction preferring one or the other. But here the interested parties’ construction does not require there to be contradiction since if “access road” includes “verge” it is apparent that the plan and measurements coincide with the words. There only becomes a difficulty should one seek, as it were, to find an interpretation which gives rise to contradiction.

[52] This brings us to the argument against the relevance of our proposed interpretation. The argument seeks to rely upon passages in Auld v Hay quoted above to the effect that any construction of the deeds, even if not the “true” construction, so long as creating ambiguity would enable the boundaries to be ascertained by prescriptive possession. Such an approach would require us, in effect, to take a different and somewhat unattractive interpretation of the words of the deed, which would have the effect of creating an inconsistency with both the plan and the measurements. We would then require to ignore the plan and measurements but nevertheless conclude that the deeds are habile to allow prescriptive possession. In our view however the point is governed by what the Lord President said in Suttie v Baird, quoted above. Taking the descriptors together i.e. words, plan and measurements, read consistently as we have found they can be, we think that the boundary has been sufficiently precisely identified so as to establish the measure of the appellant’s right by means of the deeds. Possession is excluded by the descriptors when taken as a whole.

Prescriptive Possession

[53] If we are wrong in our approach to title, it becomes necessary to consider the other critical issue which is whether there has been prescriptive possession of the disputed areas by the appellant. We think the important point here is, as the Lord Justice Clerk put it in Hamilton v McIntosh Donald Ltd, that the possession must have been not only continuous, but clearly and unequivocally referable to title of ownership. This is related to another point namely the importance of the possession being open is so that anyone with a competing title has an opportunity to challenge the possession. See paragraphs (2) and (5) at p.p. 321-322.

[54] We agree with the interested parties’ submission that the appellant’s acts of possession are consistent with the exercise of servitude rights which are conceded to exist in respect of the access road and drainage system. At the heart of the matter her activities related to the maintaining of the verge in an attractive condition. One could say the activities improved the verge as well as the setting of her property and we accept this was at least partly why the appellant carried them out. But maintenance and indeed improvement of the access are things which the servitude rights in the appellant’s title allow her to do. The interested parties’ predecessors in title were Mr Fleming until 2000, followed by Mr Hayes we think until about 2006, and thereafter her successors Ms Sullivan and Ms Parker. As we understood the evidence, Mrs Hayes lived abroad and only attended the property about once a year. Ms Sullivan and Ms Parker also lived abroad. We are not satisfied that the respective owners of Fanans could reasonably have been aware that the various appellant’s activities were unequivocally referable to an assertion of ownership rather than the exercise of servitude rights. Keeping the verges neat and tidy can be seen as maintaining the road under the servitude despite the added benefit of improving the setting of the appellant’s property. The overnight parking of the horsebox on the red triangle was somewhat intermittent and temporary and would not likely, in our opinion, have been seen as clearly beyond the scope of taking access with incidental rights such as loading material from the shed. The placing of the stones on the verge were said to have been for road management reasons. Only one or more of the stones at the entrance to Fanamor have, on balance of probability, existed for the ten year prescriptive period, and even those were said to be placed for road operational reasons rather than as an apparent appropriation of property. Stones are in any event moveable and would not necessarily signify an appropriation of land. There was no unequivocal act such as, for example, the placing of a fence hard to the tarmac which could only be construed as appropriation. It would appear that Mrs Hayes had been aware of certain activities such as the placing of wood to form a footbridge across part of the verge. As we understood the evidence she appears to have been informed as a courtesy to her. Little turns on this episode as we do not think the construction of the footbridge would be perceived as going beyond what the servitude allowed. At its highest, the appellant’s evidence was to the effect that she had understood Mrs Hayes to have assumed that she, the appellant, owned the ditch at the time it was under discussion and being repaired after the accident in 2002. However we are not satisfied that any such understanding was necessarily well‑founded since the actings were equally referable to exercise of rights under the servitude. The servitude permits the appellant to improve and repair the drainage system outwith the bounds of her own property.

[55] Turning specifically to the red triangle we do not accept the suggestion that a servitude right of access would be inconsistent with the estate’s ownership of the area on account of the doors of the shed when opened would swing over the airspace of the estate. Servitude rights of access are about passing movement over land to a greater or lesser extent, and we do not think accessing a property whereby the door is swung open or closed is significantly different to that. The door movement is incidental to the taking of access.

[56] In these circumstances we conclude that if we are wrong about habile title, the appellant in any event has not acquired ownership to the disputed areas by prescriptive possession.

Proprietor in possession

[57] Since we have concluded that the register is not inaccurate regarding the red and green areas, it is not necessary to decide whether rectification is precluded on account of the interested parties’ being proprietors in possession in terms of section 9(3) of the 1979 Act and would be prejudiced by rectification. We consider this matter only briefly.

[58] The application to the Keeper for rectification was made by the appellant on 15 September 2011. Shortly afterwards parties agreed not to carry out activities at the disputed verges until the dispute was settled. We would therefore very broadly focus upon the interested parties’ activities between their date of entry of December 2009 and September 2011.

[59] It was not, of course, submitted that the interested parties were in possession of the yellow areas inasmuch as these comprise the cottage garden and surrounding wall and fence. Nor was it argued that possession of Fanans generally by the interested parties imported the inference of possession of the specific disputed areas. There were in fact very few instances of the interested parties carrying out specific activities at the access road. The one occasion when the first interested party carried out some work would appear to have been at or about the date of application for rectification. The work appears to have been to an overgrown part of the hardstanding of the road and not the grass verge as such.

[60] The only other specific instance appears to have been in about September 2010, when the interested parties applied to BT for a wayleave payment in respect of an existing telegraph pole. The pole is, we think, situated just within the foot of the green area. As we understood it, plans were submitted to BT similar to the plan which was ultimately registered by the Keeper in order to demonstrate that the interested parties owned the land on which the pole is situated. As we understood it, BT accepted they were liable to make payment to the interested parties about a year later. It is therefore unclear whether BT’s acceptance occurred before or after the date of the application for rectification (15 September 2011), although the application for the wayleave payment was made before that date.

[61] It was submitted by the appellant that possession meant physical possession and here there was no physical possession on the ground. We note that in Safeway Stores plc v Tesco Stores Ltd, Safeway realised that they might be proprietors of the overlap area in question. They or their agents made plans to put a particular type of structure there. The Lord President said:

“… in my view, the steps taken by these agents fell short of constituting the necessary physical element for possession. The making, in offices remote from the site, of plans for an alternative structure and the making of relative enquiry of the local planning authority cannot, in my view, constitute physical acts of possession of the site; nor, in the circumstances of this case, can the carrying out of survey operations which involved no physical presence or activity on the site (or on or in the waters covering it).”

[62] In the case of an application by a registered owner to require a third party to make a wayleave payment in respect of an existing structure on the land, it would not be seen from the ground that what could be termed an act of possession had taken place. Only if a competing proprietor was already in receipt of the payment would it no doubt come to such a party’s notice. However, we think there can be civil possession, and an application for payment seems a point beyond merely making internal plans or inquiries to third parties. It is an assertion of ownership. The scheme of the 1979 Act is designed to protect the proprietor in possession who relies upon the register. We would therefore have some sympathy to the interested parties on this point. However, there are potentially difficult points. We were not certain that, between the time of the application for the wayleave payment (September 2010) and the application for rectification (September 2011) , the Keeper had in fact entered the property on the register showing its boundaries, although this was ultimately done with effect from January 2010. Also, it would be necessary to determine the consequences which would flow from the interested parties’ being found to be in possession of one physically small piece of ground within one of the disputed areas. As these points were not fully argued and are not necessary for the determination of the case we would reserve our opinion. What is perhaps more significant is that the appellant herself had not sought a wayleave payment which, had she done so, would have been an unequivocal assertion of ownership in the context of prescriptive possession. As we have found however, her activities fall short of that.

Decision

[63] It therefore follows that the appellant is not entitled to rectification of the register in respect of the red and green areas. As has been conceded, she is entitled to rectification of the yellow area or areas to the extent these include the cottage garden and its surrounding wall and fence. Otherwise the appeal is refused.

[64] In accordance with our practice we have found it simpler to find the appellant entitled to such limited rectification rather than to make a specific order. We would request the Keeper to confirm her position as to redrawing the yellow areas and plan in the light of our decision.

[65] This decision has proceeded upon the view that the appellant has a servitude right of access over the disputed areas, which we have interpreted as being part of the access road. This was very properly conceded by the interested parties. We consider in the interest of avoiding future disputes that it would be appropriate if the Keeper were to note the existence of the servitude right of access over the disputed areas as an overriding interest in the Land Register. We would therefore request that the Keeper does so.