OPINION

Paul Munro (applicant) v The Keeper of the Registers of Scotland and Borthwick Campsite, LLP (interested parties)

[1] This is an application containing a referral under sec 82 of the Land Registration etc. (Scotland) Act 2012 (“the 2012 Act”) of a question relating to the accuracy of the Land Register and what is needed to rectify any inaccuracy. The entry whose accuracy is being challenged is a Land Certificate in favour of Borthwick Campsite LLP issued on 10 August 2015 under title number MID162719 in respect of an area of land described as “The Scout Field”, Borthwick, Gorebridge, Midlothian.

[2] The applicant is Mr Paul Munro and said Borthwick Campsite LLP appear as interested parties. The Keeper of the Registers of Scotland, to whom the application has, of course, been intimated, has not entered the process but her position, as disclosed in correspondence (production A6), is that she accepts that the title sheet contains a manifest inaccuracy in terms of sec 80 of the 2012 Act, in that land which is truly the property of Mr Munro has been included in the interested parties’ title, but feels unable to rectify it for fear of interrupting a period of possession which would, under section 1(1) or 2(1) of the Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”), affect a real right. She has accordingly marked the above entry in the Register as “provisional” in terms of sec 81 of the 2012 Act but rectification of the Register cannot take place until the existence of the inaccuracy and what requires to be done to rectify it has been judicially determined. That, of course, is a matter for us which is, essentially, why the Keeper has not entered the process.

[3] In the circumstances more fully narrated below, Mr Munro founds his challenge on the Sasine titles; both his own predecessor’s title and that of the interested parties’ predecessors, claiming that those are sufficiently precise to exclude the operation of prescription in respect of the area in dispute. The interested parties take the opposite stance, arguing that the Sasine title of their immediate predecessors is habile to include the area in dispute and that their title to it had been fortified by positive prescription long before the disputed entry in the Land Register was made.

[4] We carried out an accompanied inspection on Wednesday 8 March and held a hearing by way of proof on Monday 13 and Tuesday 14 March, when the applicant was represented by Mr Paul McNairney and the interested parties by Mr Frank Burr, both junior counsel.

[5] At the outset of the hearing Mr McNairney suggested we might, in effect, split the proof and hear the evidence bearing on the averred inaccuracy and whether prescription could operate first. A decision on that could, possibly, be arrived at overnight and that would determine whether it was necessary to hear the evidence of possession. Mr Burr preferred a proof at large. Although we would have been very attracted by Mr McNairney’s proposal had it come earlier, given the fact that parties – or certainly the interested parties - and their witnesses had attended ready for a proof at large and not being willing to put ourselves under any pressure as to our consideration of the first question, we declined and heard proof on both aspects of the case. In the event, however, we have decided the first question in favour of the applicant, so the second question does not arise. This decision therefore deals only with the determination of the existence of a manifest inaccuracy in the Register and what requires to be done to rectify it.

The facts

[6] The land in dispute was part of Borthwick Mains Farm which was owned by Mr James Stewart Pringle. In or around 1981 he decided to sell the farm and it was sold in lots by John Swan, Auctioneers. The applicant’s wife, Mrs Jacqueline Mira Olive Massee or Munro, bought lot 4, which is shown on the plan attached to the disposition in her favour, production A2. That disposition (hereinafter “the 1981 disposition”) is dated 23 December 1981 and was recorded in the (Sasine) Register for the County of Midlothian on 6 January 1982. It describes the area being disponed as extending, in all, to 51.9 acres and comprising various enclosures, including “part of [enclosure] number 2069 on the Ordnance Survey, 1972 edition”, “all as the said area of ground hereby disponed is delineated in red on a copy of part of said Sheets [a reference to the 1972 OS sheets] annexed and subscribed as relative hereto”. Neither the body of the disposition nor the plan referred contain measurements of the boundaries but the disposition contains a burden in the following terms;

“in respect that I have agreed to erect at my own expense a stockproof fence along the northwest boundary of that part of the subjects hereby disponed lying generally to the south of the access marked “Track” on said plan in order to separate the subjects hereby disponed from other parts of Borthwick Mains Farm which are presently occupied by the Scouts, and by the Caravan Club, it is declared that the maintenance of the said fence will thereafter be at the joint expense of my said disponees and her foresaids on the one hand and me and my successors as proprietors of the adjoining subjects on the other”.

[7] In or around 1982 Mr Pringle, who was himself a Scoutmaster, offered the Inveresk Scout Troop the opportunity of buying an area of approximately an acre within field 2069 at a price of £500. That offer was accepted and the disposition in favour of the Trustees for Inveresk District Scout Council of the Scout Association, dated 13 and recorded GRS Midlothian on 19 July 1982 (hereinafter “the 1982 disposition”) is production A3. It describes the subjects being disponed as:

“ALL and WHOLE that area of ground extending to one acre or thereby Imperial Standard Measure delineated in red on the plan annexed and subscribed as relative hereto being the westmost part of enclosure Number 2069 on Ordnance Survey 1972 Edition Sheet NT 3758 which subjects are part and portion of the farm and lands of Borthwick Main, Gorebridge in the County of Midlothian”.

As with the 1981 disposition, the plan annexed bears no measurements but the body of the deed contains a burden in relation to the maintenance of a fence, this time in the following terms:

“In respect that I have erected at my own expense a stock proof fence along the southeast boundary of the subjects hereby disponed in order to separate the subjects hereby disponed from other parts of Borthwick Mains Farm which are presently owned by Mrs Jacqueline Mira Olive Massee or Munro it is declared that the maintenance of the said fence will be at the joint expense of my said disponees and their foresaids on the one hand and the said Mrs Jacqueline Mira Olive Massee or Munro and her executors and assignees whomsoever as proprietors of the adjoining subjects on the other hand.”

[8] In 2010 Mrs Munro disponed the land she had acquired in 1981 to her husband, the disposition simply referring to the subjects as those more particularly described in the 1981 disposition.

[9] Sometime prior to August 2015 the Trustees for the Inveresk Scouts agreed to sell the subjects they had acquired in 1982 to the interested parties at a price of £16,000. That transaction triggered registration in the Land Register and the making of the entry now in dispute.

[10] As is clear from the quotation from the 1981 disposition set out above, an area of enclosure 2069 had, prior to then, been occupied by a campsite used by both scouts and the Caravan Club. Some of the witnesses spoke to that and there was a considerable body of evidence relating to the scouts’ ongoing use of the subjects since that time and up to the present day. We have also heard evidence as to Mr and Mrs Munro’s use of it and it is clear that over a period of time a great deal of animosity came to be generated as between them and the disponees under the 1982 disposition resulting in two Sheriff Court actions, at least one of which led to the Munros, or at least Mr Munro, being interdicted from entering upon the area in dispute. Those disputes now fall to be resolved by the outcome of this application.

The evidence

[11] The interested parties led no evidence bearing on the question whether the 1982 disposition contained a bounding description sufficient to identify the boundaries of the subjects disponed and, therefore, exclude the operation of prescription beyond them. The only evidence on that came from Mr Ben Burbridge MRICS FAAV who had surveyed the subjects and produced a report, production A10, on the instructions of the applicant. The only other witnesses for the applicant were Mr and Mrs Munro themselves whose evidence, on this aspect of the case, was simply to speak to the 1981 and 2010 dispositions.

[12] There is no need to set out Mr Burbridge’s evidence in detail. Suffice to say that his report, dated 7 March 2017, concludes:

“In summary, from the respective disposition plans, in my opinion there is no overlap between the respective deed plans. The boundaries would appear to abut each other when the 1981 and 1982 disposition plans’ boundaries are compared and this was where the stock proof fence was to be erected to separate the titles.

It is therefore apparent on the basis of comparison of the 1981, 1982 and 2015 plans [the 2015 plan being that which appears in the interested parties’ Land Certificate] and the description of the land transferred by the 1982 disposition that the granter of the 2015 disposition was only in possession of the 0.720 acres disponed in 1982 but appears to have transferred 1.417 acres part of which is contained within the area in the 1981 disposition.”

[13] In cross-examination Mr Burr brought out some minor defects in the witness’s report, such as the fact that he had missed out enclosure 8300 in his narration of the subjects contained in the 1981 disposition and that he had been wrong to refer to the position in which Mr Pringle had intended to erect the stockproof fence, since he did not know what Mr Pringle’s intention had been. Similarly we ourselves would observe that his reference to the granter of the 2015 disposition being “in possession” of only the 0.720 acres disponed in 1982 in the second paragraph of the above quotation is not the most precise use of language, since it risks confusion of ownership with occupation. However, all of these criticisms are minor and have no bearing on the validity of Mr Burbridge’s conclusion. That was his own evidence and we, as an expert tribunal, see no flaw in his approach, methodology or conclusions. So we accept his evidence.

Submissions

For the applicant

[14] Mr McNairney defined the issue as being whether the dispositions were bounding titles and, if so, whether the boundaries could be defined with sufficient precision that the titles themselves were the measure of the right, not possession.

[15] He referred to Johnston on Prescription and Limitation 2nd ed at para 17.45:

Bounding titles. The general principle that a possessor cannot prescribe in a sense inconsistent with his title is reflected in the critical distinction between titles which are bounding and titles which are not. Where the boundaries of a title are delimited, for example by measurements, description, specification, a plan, or some combination of these, there is no scope for relying on prescriptive possession to acquire title to an interest in land lying beyond the boundaries.”

[16] The nature of exercises of this kind had been discussed by Lord President Hope in Suttie v Baird 1992 SLT 133 at page 136 and his approach had been followed by this tribunal in Campbell-Gray v The Keeper & Ors LTS/LR/2013/12, decision of 28 January 2015 at para [40]. In Suttie Lord President Hope had concluded:

“In my opinion the pursuers’ 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 pursuers’ right.”

[17] In the present case, both the 1981 and 1982 dispositions had attempted to define the subjects by reference to a plan only; there was no verbal description. But a verbal description was not necessary, a particular description could be purely by way of a plan; Gretton & Reid, Conveyancing, 4th ed para 12-16. The reference to “an acre or thereby” in the 1982 disposition was not part of the bounding description so did not admit prescription. There had to be a conflict between the descriptions of boundaries in the deed before prescription came into play, but here there was no such conflict because there was only one description of the boundaries, viz the plan. In that situation a conflict could not arise: Gretton & Reid ibid para 12-18.

[18] So the question then became whether the plan here sufficiently identified the boundaries. That exercise involved construing the title and looking at the situation on the ground. For prescription to operate it had to be shown that the title in question “was capable, or susceptible, of being construed in a way consistent with the possession which has followed”; Lord Kingarth in Rutco Inc v Jamieson & Anr unreported decision of 7 September 2004.

[19] The only evidence on that matter led in this case had been from Mr Burbridge whose conclusion was that the plans attached to the 1981 and 1982 dispositions were sufficiently clear to allow the relevant boundaries to be identified on the ground and, when that was done, there was no overlap between them. Accordingly the title itself was the measure of the right and there was no room for prescription.

For the interested parties

[20] In Mr Burr’s submission the plans annexed to the 1981 and 1982 dispositions were erroneous and should be disregarded in favour of the dispositive clauses. The Tribunal could infer that the plans were in error from the terms of the dispositive clauses and the evidence. In each case he relied on the burdens to do with fencing set out above. Although burdens, they were part of the dispositive clauses in the respective dispositions (Bell, Lectures on Conveyancing, page 681; Gretton & Reid, ibid para 11-10 to 11-13) and, in the case of conflict, the dispositive clause ruled; Halliday, Conveyancing Law and Practice, 2nd ed para 4-27. In the present case there was no bar to that because in neither disposition was the plan said to be taxative.

[21] The parts of the dispositive clauses on which Mr Burr sought to rely were the fence maintenance burdens set out above. The clause in the 1981 disposition referred to a fence which the disponer had agreed to erect, so it had not already been erected. By the time of the 1982 disposition it had been. It was, therefore, as we understood the submission, permissible to look to see where the fence had been erected. It had not been erected along the boundary shown in the plans. Thus there was conflict between the dispositive clause and the plan, sufficient, at the very least, to give rise to ambiguity and therefore the measure of the right had to be decided by reference to possession and prescription. Put another way, the reference to the fence in the 1982 disposition rendered it habile to include the disputed area if regard could be had to where the fence had been erected. As authority for the proposition that regard could be had to matters extraneous to the deed, Mr Burr relied on the Inner House decision in Paterson v Carnegie (1851) 13 D 997 and Halliday, ibid at para 33-13, where it is said “If the matter becomes an issue the court will endeavour to ascertain the true intention of parties, and may admit extrinsic evidence as to the circumstances of the transaction and evidence of possession”. He submitted that we should seek to ascertain the intention of the parties in this case and it was open to us to conclude that the land conveyed in the 1982 disposition was to be ascertained by reference to where Mr Pringle had put the fence together with evidence as to discussions between him and a representative of the scouts which had taken place at that time.

[22] With reference to Mr Burbridge’s evidence, even if there was no overlap between the plans in the 1981 and 1982 disposition the terms of the dispositive clause of the latter could not be read consistently with the plan. As well as the inconsistency between the plan and where the stockproof fence referred to in the dispositive clause had been erected, there was the reference to the subjects disponed being “one acre or thereby”. That again was inconsistent with the plan, which enclosed an area significantly less than an acre. When these elements were combined it could not be said, in the words of Erskine, cited in Rutco Inc, that the title was “obviously and indubitably exclusive” of the disputed subjects. In this regard reference was also made to what was said, to the same effect, by Lord Justice-Clerk MacDonald in Cooper’s Trs v Stark’s Trs (1898) 25 R 1160 at pages 1164-65 and to what was said by Lord Russell in Nisbet v Hogg 1950 SLT 289 at page 294 to the effect that the rule that a bounding description is not habile to prescribe by exclusive possession rights to land beyond it was merely a particular example of the general rule that an owner cannot prescribe in a sense inconsistent with his title. In that last case, it had been held that prescription could run provided one of the contradictory elements in the description was susceptible of being read so as to include the area in question.

[23] The question in this case was the same as Lord Kingarth had asked in Rutco Inc at para [14]: whether the disposition (i.e. the 1982 disposition) was “susceptible of a construction which would convey [the disputed area]”. If it was, that was sufficient to let prescription in. In Mr Burr’s submission that was the case here; the reference to the erection of the fence and what was known about where the fence was put made the disposition susceptible of such a construction. In Suttie v Baird Lord President Hope had said, at page 137G, that, in that case, possession was the best guide to the position of the western boundary. So it was in this case also, in relation to the southeast boundary of the 1982 subjects.

Mr McNairney in response

[24] In Mr McNairney’s submission Mr Burr had been inviting us to forget the plan. But the plan was key: it was the only way in which any transferee could know the boundaries of what he was getting. For prescription to operate there had to be ambiguity or inconsistency in the description of the subjects in the deed. Here only the plan described the boundaries, so it was not a situation in which there was a written description as well and the two contradicted each other. Paterson v Carnegie could be distinguished on that basis. In Nisbet v Hogg, Lord Carmont, albeit in a dissenting opinion, had emphasised (at page 296) that it was to the boundaries one had to look to see if there was an ambiguity.

DECISION

[25] We take as our starting point what was said by Lord President Hope in Suttie v Baird in the passages to which Mr McNairney referred us, beginning at page 136A:

“The question is whether the description of the land conveyed by the feu disposition is habile to include [the area in dispute]. As Lord Salvesen put it in Troup v Aberdeen Heritable Securities Co., the test is whether the ground as possessed fits the description in the title on which possession has followed. In Brown v North British Railway Co., at (1906) 13 S.L.T., p. 798 Lord Kyllachy said that the question was whether “upon any reasonable construction” the title covers the ground in dispute. In Auld v Hay at p. 668 Lord Justice-Clerk Moncreiff said: “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 a 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.””

A little further on his Lordship returns to Lord Justice-Clerk Moncreiff, this time in the case of Reid v McColl (1879) 7 R 84 at page 90, where the Lord Justice-Clerk said this:

“A bounding title is one in which the property is identified by its boundaries, as distinguished from one in which the identity and extent of the subject depends only on description. … The true question is whether the boundaries are specified, and if they are, whether they can be identified. If these two concur, they will receive effect, and the proprietor cannot prescribe beyond them.”

[26] As to what can constitute a bounding description, the following observations on “Bounding descriptions”, from Gordon on Land Law, 3rd ed at page 42, are as convenient and accurate as any. The author first notes an observation by Erskine [II, vi, 2] that:

“[D]ifferences can seldom arise concerning the extent of the lands conveyed in a bounding charter, which points out the limits of the grant by march-stones, the course of a river, or other obvious and indubitable boundaries”

and, after some discussion, concludes:

“Erskine’s description of a bounding charter assumes the use of natural or artificial boundary marks, but a bounding description may also make use of measurements, statements of superficial area, or reference to a plan. If the definition is sufficiently precise, any of these may constitute a bounding description limiting the lands owned.”

[27] That a plan alone can be sufficient to constitute a bounding description is vouched for by Gretton & Reid Conveyancing, 4th ed in the passage referred to by Mr McNairney at para 12-16, where they say “A particular description (also called a bounding description) identifies the property by its boundaries, normally with measurements. … A particular description can be done (a) purely verbally, or (b) purely by a plan, or (c) by both.”

[28] What we have in the present case is a statement of approximate area, a plan without measurements and the foresaid reference to a fence having been erected. But, of those, only the plan purports to show where the boundaries are. The statement of area tells us nothing about where the boundaries are. The reference to the fence, which we are happy to accept as being part of the dispositive clause of the deed, tells us that it has been erected along the southeast boundary of the subjects being disponed but says nothing about where that boundary is. For that, one has to look at the plan, from which it is plain that, in Lord President Hope’s words in Suttie “an attempt has been made to identify the property … by reference to its boundaries”. The fact that the plan is not described as taxative does not matter. As it is put by Gretton & Reid ibid at para 12-18 “If a property is described solely by plan, without a detailed verbal description, a discrepancy cannot arise and no purpose is served by declaring the plain either taxative or demonstrative”. Accordingly, we are satisfied that the 1982 disposition contains a bounding description.

[29] The question then becomes whether the plan is sufficiently precise to enable the boundaries to be identified on the ground. Plainly it is: Mr Burbridge has done so. He is a surveyor but one does not have to be a surveyor to be able to tell – pretty much at a glance – that by no stretch of the imagination does the plan put the southeast boundary where it appears in the Land Certificate. A cursory check against surrounding geographical features – buildings, tracks and the river – tells us that.

[30] The foregoing approach, of course, involves confining ourselves to the 1982 disposition and not going beyond it. No authority has been cited to us wherein the ambiguity relied upon to set up a case of prescription did not arise from the description of the subjects in the deeds but from something extraneous, so that an apparently internally consistent description of the subjects, clear enough to identify them, is brought into question by, for example, what exists on the ground. In arguing that extraneous matters could and should, as a matter of justice, be looked at, Mr Burr founded on Paterson v Carnegie. In that case the developer of St Bernard’s Crescent, Edinburgh, the portrait painter Henry Raeburn, prepared a feuing plan showing the boundaries as projections of the boundary walls of the houses themselves. He built three houses in course of which, for reasons to do with the line of Dean Street immediately behind the back areas, he deviated from the feuing plan and erected parapet walls along different lines from those shown on that plan. Thus part of the back green shown on the plan as pertaining to number 17 was, on the ground, laid out as pertaining to number 19. The case involved a challenge by a subsequent owner of number 17, Dr Paterson, whereby he claimed ownership of all the land delineated as pertaining to number 17 on the feuing plan. By the time this challenge came along the parapet walls had been in place for some 20 years. Lord Cunninghame’s judgment at page 1001, the longest of four, can be set out in full:

“The more the matter is considered, the more clearly does it appear that the justice of the case lies with Miss Carnegie [the proprietrix of number 19]. No doubt reference is made in the pursuer’s title to the ground plan, and the case has been argued as if the boundaries were given in straight lines prolonged from the centre walls; but reference is also made to the parapet-walls as erected, and it is an essential feature of the case, that these parapet-walls were erected before Mr Raeburn feued the ground to Mr Dickie, the pursuer’s author. There can be no doubt that these parapet-walls are in the same state as they have always been. No man reading the conveyance can have the least doubt what the boundaries are.”

[31] In that case the disposition described the subjects as “all and whole that area of ground marked on the ground and elevation plan No. 17, together with the dwelling-house built thereon, - bounded, the said area and others, on the east by the centre of walls, parapet, and railings mutual with No. 19”. It is obvious, therefore, that the description of the subjects referred the reader to two things, (i) the plan and (ii) the area delineated on the ground by walls, a parapet and railings. Anyone attempting to interpret the title and define the boundaries had to look at both and when that was done a contradiction became apparent which their Lordships had to resolve. In our opinion that is not the position here. Here the core description of the subjects, if we might call it that, allows us to identify the subjects without resort to what is on the ground and contains no internal ambiguity or contradiction. The reference to the fence does not have to do with the location of the boundaries, it has to do with the maintenance of the fence. It cannot, in our view, be brought into account in order the subvert the attempt to identify the subjects disponed by the boundaries shown in the plan. The fact of the matter is that it is perfectly possible to read that reference to the southeast boundary consistently with the plan: it narrates only that the disponer has erected a fence along that boundary. To find out where that southeast boundary is, one looks at the plan. Accordingly there is here no internal inconsistency in the disposition.

[32] The case of Paterson is, therefore, clearly distinguishable but, since Mr Burr relied on it to bring into play considerations of reasonableness and justice, it is appropriate to say that considerations of justice in this case are not all one way. The area now claimed by the interested parties has for long been used by the scouts and it seems highly likely that Mr Pringle’s intention was always that they should have all of it but Mrs Munro was not to know that and the fact is that she had bought the land in question the previous year, and understood herself to be the owner of it. Although this area was a small part of what she bought, it was good land and her letter to Mr Pringle, production A9, shows her remonstrating with him about it at the time. If a mistake was made in the laying out of “lot 4” in the sale particulars and repeated in both the title in her favour and that in favour of the Inveresk Scouts, that was not her fault. The evidence does not suggest otherwise than that she acted in good faith throughout.

[33] Finally we come to answer the question identified in various ways in the authorities. Does the ground as possessed fit the description in the title (Lord Salvesen in Troup v Aberdeen Heritable Securities Co 1916 SC 918 at page 927)? On any reasonable construction of the 1982 disposition does it cover the area in dispute (Lord Kyllachy in Brown v North British Railway Co (1906) 13 SLT797 at page 798)? Or is that area “obviously and indubitably” excluded (Lord Justice-Clerk MacDonald in Cooper’s Trs v Stark’s Trs at page 1165)? In our opinion, the 1982 disposition contains a bounding description from which it is possible to identify the boundaries clearly on the ground and it is not therefore permissible to qualify or contradict that description by reference to the fence maintenance burden. When the boundaries are identified on the ground, as Mr Burbridge has done (although it is not necessary to rely on his experience to reach the same conclusion) they obviously and indubitably exclude the area in dispute.

[34] Our conclusion is, therefore, that prescription cannot operate in respect of the area in dispute and that Title Sheet MID162719 contains a manifest inaccuracy which requires to be rectified by the substitution of a title plan consistent with the boundary shown in the plan annexed to the 1982 disposition. For the Keeper’s assistance we have made available to her the plan of the subjects prepared by Mr Burbridge, being Annex 5 to production A10.

[35] Both parties moved for expenses in the event of success and for certification of the application as suitable for the employment of junior counsel. Since success has been clear cut we have made an award in favour of the applicant. We are satisfied that the employment of junior counsel was justified by the complexity of the matter and we have so certified.


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 30 March 2017

Neil M Tainsh – Clerk to the Tribunal