Lands Tribunal for Scotland

OPINION

Iain Mathers
v
The Keeper of The Registers of Scotland
and
Mr And Mrs George Mortimer

[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, under a Sasine title, a farm lying to the east of a burn. The interested parties own a croft which, subject to the present dispute, lies mostly to the west of the burn and includes a field to the east of the burn. The interested parties have a registered title. There is an overlap area (“the orange area”) which consists of the east bank of the burn and a portion of the field lying to the east of the burn. The Keeper accepts she has made an error in that the register is inaccurate and should not have included the orange area in the interested parties’ title. She has declined to rectify the register because she is unable to adjudicate upon a dispute about possession. A further area to the east of the burn and the orange area (“the green area”) has been removed from the interested parties’ title by agreement with the Keeper. This was on the basis it is accepted the interested parties have not been in possession of it and, therefore, it is possible to rectify the register. By the time of the hearing we understood the interested parties did not necessarily accept there was inaccuracy in the register regarding the orange area, and it was contended that the first interested party in particular was a proprietor 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…”

[3] 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.

[4] 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”.

Authorities referred to

Burr and Another v. Keeper of the Registers of Scotland and Another (12 November 2010, LTS/LR/2008/09).
Burton v Keeper of the Registers of Scotland 2014 SLT (Lands Tr) 69.
Glaser v. Glaser 1997 SLT 456.
Gray v Keeper of the Registers of Scotland (LTS/LR/2013/11; 27 August 2014).
Menzies v. Marquis of Breadalbane (1901) 4 F 55.
Nicol v. Keeper of the Registers of Scotland 2013 SLT (Lands Tr.) 56
Rivendale v. Keeper of the Registers of Scotland and Clark (LTS/LR/2012/01; 30 October 2013).
Safeway Stores plc v. Tesco Stores Ltd. 2004 SC 29.
Tesco Stores Ltd. v. Keeper of the Registers of Scotland 2001 SLT (Lands Tr.) 23.
Trustees of Niall Calthorpe’s 1959 Settlement v. G. Hamilton (Tullochgribban Mains) Ltd. and the Keeper of the Registers of Scotland [2012] CSOH 138.

Textbooks referred to

Registers of Scotland, Registration of Title Practice Book (2nd Ed, 2000).
Walker & Walker, The Law of Evidence in Scotland (3rd. Ed. by Ross and Chalmers, 2009)
Gretton and Reid, Conveyancing (4th Ed.; 2011)

Procedure

[5] The Keeper lodged answers to the appeal which include an admission that the land certificate issued to the first interested party:

“…included within his registered title an area of ground lying to the east of Bents Burn in respect of which the appellant has a recorded Sasine title and to which the interested parties’ predecessors had no right at all”.

[6] The Keeper’s answers make further reference to a letter to the appellant’s solicitors of 12 April 2007 to the effect that the respective Sasine titles show the boundaries to the properties to be the west and east banks of the burn respectively and there may be a presumption that the medium filum of the burn forms the boundary between the two properties. The interested parties produced letters of 10 February and 7 April 2014 to the Tribunal which we have treated as answers to the appeal. It is convenient to refer to the first interested party Mr Mortimer as “the interested party” throughout this opinion except where context requires otherwise.

[7] A hearing was held on 28 and 31 October 2014. The appellant was represented by Mr Iain Maclean, advocate, who called the appellant and Mr William Archibald as witnesses. The interested party is a retired policeman and represented himself. He gave evidence and called Mr Robertson Mortimer as a witness. He produced two signed statements of other witnesses, namely Dr Christopher Allan and Alexander Allan who did not give evidence in person. The Keeper was not represented at the hearing. She did not offer any evidence on the issue of possession. We held a site visit on 29 October 2014.

Background

[8] The appellant is a farmer. He acquired Tillymair Farm, Tough, Aberdeenshire in 1984 from a Mr Milne. The farm is about 200 acres in size. The westmost field is large and numbered 3554 on the ordnance survey. That field had previously been three fields in 1984. The field is rotated between three years in grass, which includes both silage and grazing for cattle, one year in potatoes and three years in grain. To the west of the field lies the Bents Burn.

[9] The disposition by Mr Milne to the appellant was recorded GRS Aberdeen 7 June 1984. It comprised five parcels of land subject to various exceptions. The subjects (in the fifth place) are described as 35.079 acres “lying on the east side of the avenue leading to Tonley House and being the subjects more particularly described in and disponed by and delineated and coloured pink on the plan annexed and executed as relative to” a disposition by Hambling Crundall and Company Limited to Andrew Stephen recorded GRS Aberdeen 20 January 1950. That disposition referred to 35.079 acres or thereby lying on the east side of the avenue leading to Tonley House, consisting of areas marked with various numbers on the ordnance survey map for the County of Aberdeen, 1900 Edition being lot number 38 of the estate of Tonley, as at that time occupied by certain individuals, “…and which subjects hereby disponed are delineated and coloured pink on the plan annexed and signed as relative hereto, but which plan and extent though believed to be correct are not guaranteed:” The plan of “lot 38” annexed to the 1950 disposition shows the three fields which are now comprised within field 3554. It also includes a triangular area to the northwest which was excluded in the disposition to the appellant. Critically the plan of lot 38 shows the coloured area extending westwards up to Bents Burn, so as to include the east bank of the burn. The plan shows a belt of trees to the east and west of the burn, and the trees to the east of the burn are included in lot 38.

[10] The interested party acquired 17.12 acres of land at Tonley, Tough in 1997. He describes the land as a croft. He has built a house there close to the ruin of the old Tonley mansion house. He acquired it for consideration from his mother Mary Henderson who was executrix of Alexander Henderson. Mr Henderson was the interested party’s stepfather who died in 1994. The croft is grazed by sheep. The croft lies generally to the west of Bents Burn. It also includes area Y to the east which is not disputed, which we describe below. In addition there are the disputed areas lying to the east of the burn. The burn lies between the two properties Tonley and Tillymair where it extends for approximately 850m .

[11] The interested party’s title was registered on 23 June 1997. The red line boundary shows a strip of land within his ownership to the east of the burn. As will be seen, this initially comprised what was to become both the orange and green areas, but following an agreed rectification now only comprises the orange area. This is the overlap area. The orange area roughly comprises the east bank of the burn, and a portion of the small field positioned at the south of the boundary lying to the east of the burn. The Keeper produced a plan marking points A, B, C, D and E on the orange area. Points A and B are to the north and reflect the length of the small triangular area which was excluded from the disposition in favour of the appellant. The conveyance of the triangle was not produced and we do not attempt to draw a conclusion as to its precise boundaries. Points A-B- C mark much of the eastern bank of the burn. Points C, D and E mark the north and east boundary of the portion of the south field. This portion of field is marked Z on a plan produced by the appellant. It lies to the east of the burn. The other portion of the field is marked Y and is to the east of Z . Area Y is included in the interested party’s title, over which there is no dispute. Area Z is however in dispute as part of the orange overlap area. There is a bridge over the very south part of the burn between Y and the rest of Tonley. There is another field known as area X which is to the east of area Y and across a track. Field X belongs to the appellant on a separate title.

[12] The disposition upon which the interested party’s registered title is based was a disposition by trustees of William Lyon in favour of Julian Nicol Smith recorded GRS Aberdeen 28 April 1950, subject to a certain exception. The dispositive clause referred to the subjects as “all and whole the subjects consisting of the mansion house known as Tonley House and offices with ground attached comprising the areas or enclosures marked ….” Various enclosure numbers are stated by reference to the ordnance survey sheets of 1902 for the County of Aberdeen. The subjects are further described as being 17.12 acres, “which subjects hereby disponed are delineated and coloured pink on a plan hereto attached and on the duplicate thereof to be given to the Register of Sasines…which plan and extent though believed correct are not guaranteed…”. The coloured plan shows the east boundary as the burn itself and not the east bank. At the south it includes area Y to the east of the burn. Area Z was not included.

[13] Accordingly the Sasine plans of the two 1950 dispositions to the predecessors of the appellant and interested party respectively coincided in that the burn was the boundary for most of its length. Thus the east bank appears as part of the Tillymair subjects and the west bank appears as part of the Tonley subjects. Area Z to the east of the burn was part of the Tillymair subjects and area Y was carried with the Tonley subjects. For reasons which were not explained in evidence, the registered title of Tonley came to include the east bank and area Z.

[14] The present dispute emerged in about 2005. The appellant and the interested party had had a conversation in the area of their southern boundary. There were differing recollections of this conversation which we will discuss later. However as a result the appellant came to be informed that the interested party’s registered title extended not just to area Z under discussion but also the east bank of the burn. The Keeper was contacted, we infer, with a view to rectification. In October 2005 she produced the plan, we understood on the basis of a survey, which showed the overlap area coloured both green as she put it “clearly occupied by (the appellant)” and the area coloured orange “currently occupied by (the interested party)”. The green area in fact extended beyond the east bank of the burn and into the field 3554. The interested party placed marker posts on field 3554 along the eastern edge of the green area, probably in about Autumn 2006. These were removed by the appellant. On 20 April 2007 shortly after the application for rectification the Keeper indicated that her surveyor noted that the interested party was in possession of the area coloured orange between the points C, D and E, (i.e. area Z), but the evidence was inconclusive regarding possession of the area coloured orange between points B and C, i.e. the eastern bank of the burn.

[15] The interested party accepted that the green area should be removed from his title on the basis that he had not utilised it. When he disponed a half share of his interest in the Tonley property to his wife in 2010, the green area was excluded and only the orange area was carried by the new title. It is this title ABN11679 which falls to be rectified should we be satisfied it is inaccurate and that the interested parties have not been in possession.

Evidence of possession

[16] We should preface our narrative by pointing out that parties’ recollections of dates were somewhat general, and rather inconsistent. This is perhaps unsurprising in the nature of such matters, particularly whereas here both parties focused on historical use of the subjects over a lengthy period of time. It is necessary to set out the evidence of possession in some detail as follows.

The fence

[17] There is no fence now in existence along the west of the burn. The present fence along the east side is stockproof. It generally lies at the top of the bank. It runs from B – C whereupon it leaves the burn and leads to D and thence to an unmarked point on an access track. It thereby encloses areas Z and Y and, since it does not divide them, so creates a single field. The present fence was placed at the top of the bank where there is firm ground and to avoid trees along the edge of the burn. From our own observations it would appear that the orange area generally follows the line of the currently maintained fence. It was not disputed that there had been an old fence between points B-C, approximately 720m in length, much of which was removed by the appellant in operations commencing in about Autumn 2006. It was largely replaced by the new fence between March and September 2009. The appellant’s work had been delayed because of the dispute. Much of the old fence had been erected hard along the edge of the burn itself, and in places its remains can be seen only one or two feet away from the burn itself. It is possible that parts of the burn had migrated somewhat towards the east bank over the years, as suggested by the interested party. However, given the extensive remains and marks of the old fence along the edge of the burn, we do not think alluvio to have played a significant part in the matter. Towards the south of the burn it would be fair to say that the remains of the old fence were closer to the top of the bank particularly at places where it had been led around trees. There was a small number of concrete strainers at the south around C going north which were said to have been erected by Mr Milne, the previous proprietor of Tillymair. These reflected parts of the old fence which, if it had been replaced there, still used the old strainers and thus followed the original line. We would estimate perhaps a third of the old fence from C – B going north was closer to the top of the bank than the burn itself, up until shortly after a point marked F. Therafter much of it was situated close the water. On the other hand it did not appear to be disputed that the fence line further south between C-D, where it departs from the burn and travels towards the rough access track, was put in place by Mr Henderson the previous owner of Tonley.

The appellant

[18] The appellant gave evidence to the effect that until the new fence was erected, his livestock grazing in the field would be contained only by the old fence along the edge of the burn and accordingly had access to most of the bank. He indicated there had been at least two watering points in the old fence formed by means of putting up rails across part of the burn. He believed that there had been a fence on the west part of the burn as well. He had not used the watering points for some years. When they were removed the fence was replaced with temporary fencing which at one location can easily be removed and thereby use of a watering point can be recommenced. We took him to mean that this use was superseded by the subsequent use of troughs in the large field 3554. These had been maintained by a private water supply but more recently the troughs had had to be connected to a mains water supply which is metered. The continued use of the troughs therefore has cost implications. The watering points had not on the appellant’s evidence been used for at least 10 years.

[19] Clearly if he did not own the east bank of the burn he would be unable to provide watering for his livestock there as a matter of right.

[20] As regards the discussion the appellant had with the interested party in 2005 at the southern boundary, the appellant had offered to buy area Y. This was for access for his cattle to cross from his field X to Y and thence to area Z which he owned and thereby could take water from the burn there. The interested party had indicated that he intended to build a house, part of which would straddle on to area Z. It thus became apparent that there were conflicting titles on area Z.

Mr Archibald

[21] Mr Archibald had worked for Mr Milne at Tillymair from 1967 until 1984. He had always understood Mr Milne to own the east bank of the burn. He had maintained the fence. The old fence had been hard to the east bank. He recalled the fence crossing the burn from the east side to the west at approximately point F being a point about three-quarters of the way between A and E. This arrangement allowed stock from both sides to water at the burn. Mr Archibald had not been involved in any operations south of the fence between C-D, i.e. on area Z. He had not been aware of this area being farmed.

Interested Party

[22] The interested party gave evidence that he had had some knowledge of the Tonley subjects when his stepfather acquired them in 1959, until 1964 when he left the area to work in London. He became reacquainted with the subjects in 1997 when he acquired them. He remembered tree roots being removed by his stepfather from areas Z and Y, namely south of the fence line C-D. He believed there had been an agreement between Mr Henderson and Mr Milne to the effect that the boundary was the east side of the burn and that Mr Henderson had agreed to maintain it. This was based upon what his stepfather had told him in 1959-1960, and in his view the existence of an agreement could also be assumed. There had never been a fence along the west side of the burn. In 1997 he had removed dilapidated gates from the burn which had been a watering point. He had not checked his land certificate when it had been issued but did so after the discussion with the appellant in 2005 following the latter’s request to purchase area Y. He inferred that the appellant knew he did not own area Z, because otherwise he could have taken access to the burn over that area from his big field 3554. If the appellant had been seeking access from area X he would have required to cross an access track between X and Y which was unlikely. The interested party had not been serious when he mentioned building a house in the area.

[23] The interested party referred in general terms to past use of the orange area for agricultural purposes and grazing. We took him to mean both area Y and Z had had potatoes and barley and was presently grazed by sheep. There is no fence between the two areas. There was one specific episode in February 2007 when his sheep crossed the burn and got through the fence into the appellant’s field. This appears to have been on account of lack of maintenance of the fencing. There was correspondence about this incident.

Mr Robertson Mortimer

[24] Mr Robertson Mortimer is a cousin of the interested party and a retired farmer. He had worked off and on at Tonley since 1959-1960. He was aware of trees and shrubbery being cleared in 1959 by his late uncle Mr Henderson, preparing the land for agricultural purposes. He believed that the boundary as defined by the interested party’s land certificate had been agreed between Mr Henderson and Mr Milne by means of a gentleman’s agreement. He spoke in general terms to both banks of the burn having been cropped and grazed, and that sheep and cattle had unrestricted access to both banks of the burn. More specifically he referred to area Z as having been seeded with grass and grazed. He conceded there may have been a watering point.

Witness Statements

[25] The interested party produced witness statements from Dr Christopher Allan and Alexander Allan. They are grandchildren of Mr and Mrs Henderson. Christopher Allan had visited Tonley during his childhood. He refers to being told by his grandfather that the boundary was the east fence. He refers to animal protection straddling the burn. Mr Alexander Allan’s written statement was of a similar format. It also refers to planting willow branches on the eastern bank of the burn and being told that this land belonged to his grandfather.

Parties’ submissions

[26] The appellant submitted that it was apparent from the respective Sasine title plans that the register contained an error namely the inclusion of the orange area to the east of the burn. The Keeper had conceded that the register was inaccurate. The true boundary required to be ascertained on the basis of the correct interpretation of the Sasine titles which pointed only to the burn as the boundary.

[27] The appellant submitted that for the purpose of section 9(3) it was no part of the appellant’s case that the inaccuracy was caused by fraud or carelessness on the part of the interested party. Accordingly the issue was whether the interested party was a proprietor in possession. It was submitted that having regard to the terms of section 9 the onus was on the interested party to show that he was a proprietor in possession. Under reference to Walker & Walker on Evidence at 2.2.6 it was submitted that where a statute provides for a remedy where something has or has not occurred, then the onus will fall upon the party who will fail if after evidence is heard the court is not satisfied about the matter in question. It was accepted however that questions of onus usually ceased to be important once the evidence is before the court, as is set out by the authors at 2.4.1.

[28] Regarding the nature of possession counsel helpfully referred us to a number of cases, in particular Safeway Stores plc v Tesco Stores Limited and in particular the Opinion of Lord Hamilton at [77]:-

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

[29] Lord Hamilton continues that the resolution of whether a registered proprietor is “in possession” will depend on particular circumstances and the issue may be one of fact and degree. He concluded that possession required both a mental and physical element.

[30] We were also referred to the Tribunal’s original decision (Tesco Stores Ltd. v. Keeper of the Registers of Scotland), where it stated:

“in the nature of things, disputes over boundaries are quite likely to involve small sections of land at the periphery of the occupied subjects. Evidence of physical actings demonstrative of possession may be hard to find. It is tempting to say that to force a registered proprietor to positive proof of possession of every part of the subjects covered by his title weakens the status of the register. We have come to the conclusion, however, that this is essentially a matter of circumstances. If the nature of subjects covered by the registered title is such as to justify an inference of possession of the whole without direct evidence of physical possession of every single part, necessary possession may be established. If the nature of the physical subjects covered by the title does not invite that inference other evidence may be required.”

[31] In Nicol v Keeper of the Registers of Scotland the Tribunal commented at paragraph [26] that:

“It is clear that while it may not be necessary to have and retain actual physical possession of every part of an area of ground, it is necessary to consider the position (which will be very site specific) in relation to the area in dispute. Physical features on the ground - in this case the enclosed nature, and the walls, of the disputed shed - may require a ‘proprietor’ to show actual possession of the disputed area. That case (Safeway v. Tesco), also illustrates what has been referred to as a ‘tennis match’ where the stage has been reached at which the actions of one party or the other are no more than assertions of right which go little if any way to establishing the necessary possession…”

[32] Counsel also made submissions as to the relevant date for testing the state of possession. The appropriate date or period is undefined by the 1979 Act. It is therefore unsurprising that neither the court nor the tribunal has attempted a precise formulation. The court was prepared to look at an “appropriate tract of time” prior to the date of the application and decision not to rectify in Safeway Stores v Tesco Stores. We were referred to Burr v The Keeper in which the tribunal stated that the date was:

“Not the date of either parties’ acquisition of their property. Nor is it the date of the hearing. Rather it is the date of the application to rectify … or perhaps the decision … from which it was clear that there was a dispute about possession and that it was not possible for the Keeper to proceed to rectification without that dispute being resolved by the court or tribunal”.

[33] In this case the application for rectification was submitted on 19 March 2007. It was submitted that this would be a somewhat artificial date to consider possession in terms of lateness, since it was clear that by March 2006, if not earlier, it was likely that the case was heading for a decision on rectification. The Keeper had ultimately been unable to come to a decision on possession. There was no dispute that we should ignore acts of possession which could be categorised as part of the “tennis match”, that is a process of assertion and counter-assertion of right once the dispute had emerged. In the present case that would include the marker posts placed along the boundary of the green area by the interested party in about autumn 2006.

[34] Counsel submitted that there was no specific evidence of possession of the orange area. The supposed agreement between Mr Milne and Mr Henderson was implausible. The written statements were provided by family members, were in the same format (containing we note an identical spelling mistake), were unsworn and could not be tested by cross-examination so no weight should be given to them.

[35] Critically any possession of the whole fields of Tonley could not be regarded as possession of the orange area. The orange area was bounded by the burn and could not be regarded as integral to the whole. Any possession by the interested party was not more than de minimis.

[36] The interested party did not dispute the relevance of the legal authorities cited to us. He adopted the position he had given in evidence. He contended that the true boundary was the east bank of the burn. He accepted he had no claim to the area between the old fence and the new fence. Where there were concrete posts, he contended that these represented the true boundary.

Tribunal’s consideration

Inaccuracy

[37] The issue of “inaccuracy” under section 9 involves inquiry into what has been referred to as the “true ownership”. There is inaccuracy if the registered title fails properly to reflect the position under the prior Sasine titles. There was no dispute as to the interpretation of the Sasine titles. Nor was there suggestion that those titles overlapped. On the contrary, the respective plans matched in that the common boundary was the burn and that area Z belonged to Tillymair. We heard no evidence as to the areas of land enclosed by the specified enclosures in the 1900 and 1902 ordnance survey as mentioned by the Sasine titles, and we express no view as to whether such would have been relevant. We therefore conclude on the basis of the Sasine titles that, as the Keeper has conceded, the land register is inaccurate.

[38] The interested party’s position was that if there was an error it was the failure of the respective previous proprietors, namely Mr Milne and Mr Henderson, to ensure that the Keeper was informed of their “agreed boundary”. We will turn to discuss the “agreement” later in another context, but it is clear this argument is misconceived. The concept of “true ownership” depends upon legal ownership and in this case depends upon the correct interpretation of the Sasine titles. Any “agreement” in the 1960s which had not been reduced to writing, still less registered or recorded, could not have a bearing upon legal ownership between the present proprietors.

Proprietor in possession

[39] Counsel’s analysis of the authorities on this topic at [26] – [32] above was uncontroversial. We would only add that cases such as Gray v The Keeper of the Registers and Burton v The Keeper of the Registers are examples of the practice of the Tribunal to look at the acts of possession by both appellant and interested party in order to make a qualitative assessment of the “possession” of the “proprietor.”

[40] There is no dispute that the interested party is a “proprietor” for the purposes of section 9 since he is registered as such on the land register. In determining whether he is “in possession” it is appropriate to consider his possession since the date of registration, viz. 1997. Parties have however led evidence as to historical use prior to 1997. We are dealing here with agricultural fields in a rural area where changes no doubt occur slowly and over a period of time. As we have mentioned much of the evidence was fairly general as to dates. There is little evidence of recent and specific possession of one area in particular, namely the east bank from B-C. So we think, perhaps unusually in this case, that it is appropriate to consider prior historical possession in order to help explain possession from 1997 onwards. We propose to take account of parties’ and their predecessors’ actings up until March/ April 2007. The application for rectification was dated 19th March 2007 and correspondence with the Keeper that April indicates the evidence as to possession was inconclusive between points B - C. At that point it is clear possession was in issue, and indeed had been in issue for some time. We propose to exclude from consideration the placing of marker posts by the interested party in, we think, Autumn 2006. On the face of it this appears to have been an assertion of right after the dispute emerged, as opposed an indication of natural possession, and concerned the now conceded green area. In fact the interested party described this as an attempt to assist the Keeper in marking the green area for her purposes.

[41] It has not been necessary for us to resort to onus of proof and we pass no comment upon counsel’s submission on this point.

[42] We consider that the evidence justifies a distinction between area Z, being the field at the south of the respective subjects, and the bank of the burn itself. We are satisfied that area Z has been possessed by the interested party and his predecessors. At one time it appears to have been part of the wooded area surrounding Tonley House. This larger area has evidently been cleared of trees, as was spoken to by Mr Robertson Mortimer. There was no dispute that it was fenced off from Tillymair along the fence line C - D. The area immediately to the east namely Y belongs to Tonley and there was no evidence of a fence having existed between Y and Z. Areas Y and Z are in effect one field. We accept that this area or field was seeded with grass along with other parts of Tonley for grazing purposes. Sheep grazing on Tonley fields to the west of the burn can access both areas Y and Z via a bridge. We accept this has occurred in the past and continues to occur unimpeded.

[43] The appellant led virtually no evidence to contradict the above. At its highest his evidence was that he believed area Z to belonged to him, and Mr Archibald was not aware of operations occurring there. As the appellant had no evidence of possession of this area by himself, we do not see the relevance of the interested party’s contention that the appellant had implied he thought he did not own the area during the conversation in 2005. For what it is worth, since the area is clearly shown as belonging to the appellant in his Sasine title, we do not see how he could have thought he did not own the area unless he was in some way mistaken about what that title said. But at the end of the day we are satisfied that the interested party is in possession of the area.

[44] This brings us to the east bank of the burn between B and C. We are dealing with a bank which for the most part is only a few feet wide, often not much wider than the burn itself. To use the Tribunal’s description in Tesco Stores v Keeper it is a small section of land at the periphery of the occupied subjects. There was virtually no evidence of specific acts of possession by the interested party or his predecessors of this stretch of land. It is therefore necessary to consider whether the bank is an integral element of the occupied subjects so that possession of the Tonley fields generally can justify an inference of possession of the whole thus including possession of the east bank.

[45] In this connection we require to consider the boundary features. In practical terms the east side of Tonley can be argued equally to be bounded by the burn or, a few feet further away, the fence. Absent other factors, each can be regarded as a “normal” boundary feature. So looking at the matter broadly it is difficult to infer “the whole” subjects are bounded by the fence any more than the burn.

[46] The interested party was clear in his evidence that there had never been a fence on the west of the burn. However, on the evidence we are clear he was wrong about this. We prefer the evidence of Mr Archibald which was to the effect the fence to the east of the burn crossed it and continued along the west side. Such a fence can be seen as having been in existence at one time on the ordnance survey map attached to document A6 being the interested party’s copy land certificate of June 1997. We ourselves saw at the site visit two or three old posts running perpendicular on the east bank consistent with the fence crossing the burn from east to west in the past. We are therefore doubtful as to any “agreement” between the parties’ predecessors to the effect that the boundary should entirely be the fence to the east of the burn. The “agreement” was variously referred to as “assumed,” “hearsay” and a “gentleman’s agreement”. But however it can be described we do not think the supposed agreement reflected the position on the ground. We note that Mr Archibald was maintaining the fence for Mr Milne, the then proprietor of Tillymair. We heard no reliable evidence that the fence was being maintained by Tonley consistent with the supposed agreement, apart from the line between C and D where it leaves the burn. We think the arrangement between the respective proprietors was more likely to be one of convenience whereby each side could water its stock on the burn at the point where the fence was on the other side. In our experience that would have been a typical arrangement between farmers in a way which was neutral to the boundary. The implication from this arrangement is that the boundary was more likely to have been regarded as the burn rather than the fence. This conclusion merely reflects the mutual boundary in the Sasine title plans. To the extent this finding is contrary to the statements of Christopher Allan and Alexander Allan we can place little weight on these untested statements on such a disputed factual issue.

[47] It is also the case that the east bank, such as it is, would have offered meagre or no grazing potential for Tonley. The only specific evidence we heard of sheep crossing the burn was in 2007 when the fence was in disrepair, allowing them to escape on to the Tillymair field. We are not prepared to infer from this or very general comment about sheep access that sheep crossing the burn to graze on the bank would have been a regular occurrence. The burn is fast moving and for most of the distance one or both banks are fairly steep. For much of the distance the bank is covered by weeds as much as grass. The grass where it predominates is evidently a poorer quality than the sown grass on the Tonley fields. There was no evidence of any husbandry on the east bank to support the Tonley stock. On the other hand there was evidence of old tree stumps having been removed on the west side.

[48] Moreover, as we have inferred from its remains, much of the old fence had existed only one or two feet from the burn, rather than along the top of the bank. This is consistent with an historical approach by Tillymair to appear to “concede” as little ground as possible. It is apparent that narrow sections would “cut off” wider parts of the bank such as where the fence strainers go round trees. This is particularly so in central portions but also could be seen from some of its remains to the south. In such locations it would seem almost impossible for grazing to take place. It appeared that trees along the bank would also prevent free passage for people and animals. We also note that at the northmost portion of the boundary there are no adjacent Tonley fields in any event so there could be no cross grazing there.

[49] We accept it could be suggested that the fact the interested party removed old gates which had formed a watering point, he said in about 1997, could be construed as an act of possession. However in context we think this was probably more a case of general housekeeping involving removal of derelict structures which were lying in or around the burn. It also has to be tempered by the fact that the appellant had left a temporary fence at the watering point thus implying he had not abandoned the area for future use.

[50] As we have indicated, the orange area tends to follow the top of the bank and the existing fence which is in place. Much of this fence, we think particularly to the north, is new having replaced the old fence in 2009. It was placed there for ease of construction where there was firm ground and avoided trees along the bank. At best therefore the interested party could only claim possession of a narrower area up to the old fence, and not the space between the old fence and new fence. In other words he cannot on any view claim possession of the whole orange area. The act of removal of the old fence and erection of the new fence by the appellant, despite its timing, appears to have been necessary for farming purposes and would have naturally involved working on the bank itself. That constitutes possession to a degree. The construction occurred after the date of application for rectification, but equally it was not suggested to have been part of any “tennis match.” We accept its construction had been delayed because of the dispute. On the evidence we think but for the dispute the new fence would probably have been constructed earlier around the time of removal of the old fence in Autumn 2006. It is therefore of some assistance in considering the mental element of “possession” by the appellant in the time period we have discussed.

[51] In conclusion we do not think possession of the Tonley subjects generally can imply possession of the east bank. The burn can be regarded as a natural boundary and the evidence of historical possession by parties’ predecessors indicates the burn itself was more likely to be taken as the boundary than the fence. There has not been husbandry on the east side of the burn by Tonley, whereas there have been fencing operations there by Tillymair.

[52] In these circumstances we are satisfied that the interested party has not been in possession of the orange area between B and C to more than a minimal extent. We accordingly find that he is not in possession for the purposes of section 9(3).

[53] We do not draw conclusions regarding the orange area along the small distance between points A – B. Neither party’s pleadings or evidence focussed upon this area. It is barely mentioned in the correspondence with the Keeper produced to us.

Decision

[54] It therefore follows that the appellant is entitled to rectification in part. His appeal succeeds to the extent of the orange area between points B and C. The interested party succeeds in respect of the area to the south of points C and D, namely area Z where he has been in possession.

[55] In accordance with our practice we have found it simpler to find the appellant entitled to rectification rather than making a specific rectification order. It seemed to us there was no dispute that if the rectified boundary should be the burn itself, the boundary ought be the medium filum thereof. The Keeper no doubt has a practice as to how to describe such a boundary. We therefore request that the Keeper confirm her position as to the form of order to make in the light of our decision.