OPINION

Colin David Fletcher and Elizabeth Jane Fletcher (Applicants)
v
Heather Kirkhope and Robert Kirkhope (Respondents)
and
The Keeper of the Registers of Scotland (The Keeper)

Land at Yieldshields Road, Carluke

Introduction

[1] The applicants own South Lodge which is situated at Yieldshields Road, Carluke. Their land registered title number is LAN3880. The respondents own nearby Thornhome Farm. One of their fields lies immediately to the west of South Lodge and also fronts Yieldshields Road. The disputed area (“the subjects” or “the disputed subjects”) is a triangular area lying between the southern boundary of the Lodge and the carriageway of the public road. Without attempting a technical meaning, the disputed area can be described in general terms as verge of the public road, or as a strip encompassing such a verge, albeit that it is a wide verge. We refer to the Appendix to this opinion.

[2] The applicants granted to themselves an a non domino disposition of the subjects. The Keeper accepted the registration with effect from 10 March 2005 and added the land to the applicants’ existing title sheet for the Lodge. She excluded indemnity in terms of s.12(2) of the Land Registration (Scotland) Act 1979 in respect that no evidence of prior title had been produced.

[3] The verge or strip continues to run south westwards between the carriageway of the public road and the respondents’ field. On 7 March 2008 the respondents registered a disposition in their favour by Angus Hew MacDonald Lockhart purporting to dispone to them this lengthy verge area. The disposition comprised the strip in front of the field and also the subjects now registered in name of the applicants. Title was registered under LAN199748. The disputed area was separately identified in the respondents’ title sheet, and to this extent the respondents’ title was expressly ranked behind that of the applicants. Indemnity was also excluded for the disputed subjects. The title sheet subsequently came to mention Alister and Isla Kirkhope as proprietors, whom we understood to be the children of the respondents, with the respondents being named as liferenters.

[4] The applicants maintain that their title is beyond challenge on the basis of 10 years positive prescription. They also submit that the respondents do not have a good title. They submit that there is accordingly no reason why the Keeper’s indemnity should be excluded from their title. It follows that the land register is inaccurate inasmuch as it shows the respondents as proprietors of the subjects, albeit ranked behind the applicants.

Procedure

[5] This case commenced as an appeal under s.103 of the Land Registration etc. (Scotland) Act 2012. We allowed it to continue as an application under the more appropriate provision s.82. It would appear that the applicants were initially unaware that Alister and Isla Kirkhope were named on the opposing title sheet. The application was eventually served upon them, but they have not entered appearance.

[6] We conducted a site visit on 28 August 2018 and held a hearing in Edinburgh on 23 July 2019. The applicants were unrepresented for most of the process but were represented at the hearing by their daughter-in-law Kirsty Thomson. She is a qualified solicitor but was expressly appearing as a lay person. We allowed this to take place, albeit with hesitation since she was also a witness to fact. As it transpired her evidence was not in substantial dispute and her efforts in presenting the applicants’ case were of assistance to the Tribunal. By the time of the hearing the respondents were legally unrepresented, and were represented at the hearing by the first respondent Mrs Kirkhope. The Keeper did not appear at the hearing, having stated her position in her answers.

[7] The applicants gave evidence themselves and also led the evidence of their son Graeme Fletcher. They also produced six affidavits. As we have indicated one of these is by Kirsty Thomson. The remainder are from neighbours and former neighbours, namely Rachel Wilson, Anne Black, the late Hugh Rogers, David Wilson, and Christine Hughes. We allowed these affidavits to be admitted in evidence, noting that inasmuch as these contained any matter of fact which might be controversial, the evidence has not been subject to cross-examination. Mrs Kirkhope gave evidence for the respondents.

Legislation

Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”)

Between 28 November 2004 until 14 December 2014 the 1973 Act provided as follows:

“1. Validity of right

(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) …

(b) registration of a real right in that land, in favour of that person, in the Land Register of Scotland, subject to an exclusion of indemnity under section 12(2) of the Land Registration (Scotland) Act 1979 (c.33),

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

(2) Subsection (1) above shall not apply where–

(a) …

(b) possession was founded on registration in the Land Register of Scotland proceeding on a forged deed and the person appearing from the Register to have the real right in question was aware of the forgery at the time of registration in his favour.

(3) In subsection (1) above, the reference to a real right is to a real right which is registrable in the Land Register of Scotland or a deed relating to which can competently be recorded; but this section does not apply to real burdens, servitudes or public rights of way.”

Section 1 was subsequently amended but not in a way relevant to the present issues.

Land Registration (Scotland) Act 1979 (“the 1979 Act”)

Land Registration etc (Scotland) Act 2012 (“the 2012 Act”)

Cases referred to in argument

Strathclyde (Hyndland) Housing Society Ltd v Cowie 1983 SLT (Sh Ct) 61
Short’s Trustee v Keeper of the Registers of Scotland 1996 SC (HL) 14
MRS Hamilton Ltd v Baxter 1998 SLT 1075
Safeway Stores plc v Tesco Stores Ltd 2004 SC 29 (LTS/LR/1999/213)
Hamilton v McIntosh Donald Ltd 1994 SC 304
Board of Management of Aberdeen College v Youngson 2005 1 SC 335
McCoach v The Keeper of the Registers of Scotland and City of Edinburgh Council (LTS/LR/2006/03) 19 Dec. 2008
Neumann v Hutchison and others 2008 GWD 16-297

Textbooks referred to in argument

Stair Memorial Encyclopaedia, Volume 10, Registration of Title. Sec 295; Volume 16, Prescription and Limitation, sec 2108
D M Walker. The Law of Prescription and Limitation of Actions in Scotland (4th edition 1990), page 42

Background facts and circumstances

[8] Thornhome Estate was acquired by John Livingstone in 1959. He was the second applicant’s father. It comprised some 232 acres of farmland and included a main house and a number of cottages. South Lodge was the gatehouse. The estate has been split up over the following years.

[9] The applicants have lived at South Lodge since 1976. They rented it from Mr Livingstone until they bought it in 1984. Their title at that time did not include the subjects.

[10] The east boundary of the Lodge lies immediately adjacent to an access leading to Thornhome House. This access forms an intersection with another access which leads to other properties on the estate and ultimately to the farm building. This access we understood to have been closed off fairly recently, at a point prior to its reaching the farm.

[11] Mr Livingstone died in 1986. The second applicant’s mother retained the fields and farm buildings which were subsequently occupied by her sister and brother-in-law. The farm was sold to the respondents in 2001.

[12] Issues arose between the applicants and the respondents as to the extent of the applicants’ rights of access and also to the extent of the South Lodge boundaries. Relations between the applicants and respondents became hostile. We do not attempt to detail the issues here. Suffice to say that on 10 May 2005, the applicants obtained an order against the second respondent in the sheriff court ordaining him to remove bags of silage and manure laid down to the immediate west of the applicants’ property. At about this time there were also two occasions of large black bags of heavy material being deposited at the Lodge entrance preventing the applicants from taking access via car. The respondents did not dispute the inference of some involvement by one or other of them although there was a suggestion the depositing was accidental.

[13] The applicants obtained a search which, in caveated terms, indicated that there were no entries for the disputed area in the sasine or land register. They proceeded to register the a non domino disposition. As part of the registration process they swore affidavits to the effect that they had occupied the area since occupying the Lodge. As we have said the title was registered with effect from 10 March 2005.

[14] As appears from a letter by the respondents’ solicitors, the respondents were aware of the applicants’ a non domino disposition by 17 October 2005. The respondents instructed a building surveyor to carry out an inspection of boundaries. A report dated 13 December 2005 concluded that the applicants’ land was in effect landlocked by land owned by the respondents and others, although the building surveyor referred to what was to become the disputed subjects as “possibly no man’s land”.

[15] The respondents produced a copy letter dated 25 April 2007 addressed from Mr Kirkhope to Mr Fletcher. This makes various comments as to the legal effect of the a non domino disposition. The applicants denied having received the letter, and pointed out that their stated address on the copy omitted the post code. Mrs Fletcher accepted that the postal service in the area was not always reliable. Whatever the fact of the matter, we do not think the sending or otherwise of the letter adds anything to the case, and we do not develop the issue here.

[16] In July 2007, the applicants applied for planning permission to create (or as shall discuss later, to recreate) an access from the south of their property across the subjects onto the carriageway of Yieldshields Road. Work started in July 2009. The applicants then received a letter dated 12 August 2009 from Scottish Conveyancing Services on behalf of the respondents advising that the Kirkhopes had acquired the subjects from Angus MacDonald Lockhart. The letter contended that the applicants’ title was invalid because it comprised an a non domino disposition, whereas the title in favour of the respondents had been granted by the previous proprietor. The letter indicated that the respondents did not consent to any access being taken over the ground.

[17] The applicants stopped the work and proceeded to investigate Angus MacDonald Lockhart’s title. The investigation was carried out mainly by the first applicant who is a retired biochemist. This having been done, the applicants’ solicitors wrote to the respondents on 17 November 2010 refuting the respondents’ claim to ownership.

Evidence as to title

[18] There was no dispute that the disposition in favour of the applicants had been granted by themselves, i.e. that it was a non domino. Ultimately there was no dispute that such a disposition could be used in order to register a real right for the purposes of positive prescription under s1(1)(b) of the 1973 Act. There was no question of the factor mentioned in sub-para (b) of s.1(2) of the 1973 Act being applicable.

[19] The evidence concentrated upon the respondents’ title. Enquiries had centred upon whether Angus MacDonald Lockhart had title to the land referred to in his disposition to the respondents registered 7 March 2008. The disposition provides that the subjects form part and portion of the subjects more particularly described by a disposition by the executors nominate of Simon Foster MacDonald Lockhart of Lee and Carnwath (erroneously named Simon Fraser MacDonald Lockhart in the 2008 dispostion) with consent in favour of the said Angus Hew MacDonald Lockhart recorded GRS (Lanark) 3 June 1994.

[20] The Keeper’s position in the present proceedings was that there was uncertainty whether the 1994 deed in fact included the subjects and the Kirkhopes’ title was thus treated by her as a second a non domino disposition. In a letter dated 30 August 2010 by the Keeper to the applicants, she had indicated that she was not persuaded that Angus MacDonald Lockhart had acquired the area of ground. It would appear that at the time of the registration of the 2008 disposition, the respondents had produced a report by an Ann Farmer of Landownership Scotland seeking to provide evidence as to title. This report, although mentioned in the evidence of Mrs Kirkhope, was not produced to us. In fact the respondents had successfully resisted an attempt by the applicants to have this report produced in the run up to the hearing.

[21] The 1994 disposition refers to subjects being vested in Simon Foster MacDonald Lockhart in terms of a disposition by the judicial factor on the trust estate of Sir Simon Macdonald Lockhart of Lee and Carnwath Bt in favour of Simon Foster Macdonald Lockhart recorded GRS (Lanark) 20 November 1947. The 1947 disposition conveys amongst other things the lands and barony of Braidwood conform to a charter under the Great Seal in favour of the Marquis of Douglas dated 12 December 1693. A historical account described as an Extract from the Upper Ward of Lanarkshire by G V Irving published in 1864, refers to “Zuleshields” or the village of Yieldshields as part of the barony and regality of Braidwood. However no charter or conveyance was produced which actually listed the superiorities and/ or parcels of land into which the barony title of Braidwood had been consolidated.

[22] The historical account refers to Yieldshields originally having had three principal divisions, namely West Quarter, Middle Quarter and Over Quarter. The account lists a number of portioners of Yieldshields from the 1600s and 1700s. It refers to the division of a 160 acre common among the portioners in the 1770s, including to a Thomas Cleland who held lands the Wast (sic) Quarter and Middle Quarter. One of the other portioners appears to have been no less a historical figure than Robert McQueen of Braxfield. The account appears to attempt to name all those benefiting from the division of the common, whom we infer were owners of the dominium utile at the time. In this context no mention is made of any member of the MacDonald Lockhart family. However the account goes on to say that perhaps one half of the lands of Yieldshields were acquired by the superior “and are now (i.e. by 1864) in the possession of Sir Simon MacDonald Lockhart Bt.”

[23] Mr Fletcher himself carried out research by attending the National Library of Scotland where there are maps showing land owned by the MacDonald Lockhart family in the 19th century. A copy of one of these was produced, titled “Plan of the Lands of Zuildshields” which he understood to have been dated in the 1820s. This has shaded areas showing enclosures belonging to Sir Charles MacDonald Lockhart. There are shaded areas on the east and west of the plan but not in the centre. The western enclosures are numbered Nos 1, 2, 3 and 4 and come under the heading “West Quarter Zuildshields Farm.” The eastern enclosures are numbered Nos 41, 42, 43, 44, 45 and others, and come under the heading “Croftfoot Farm.” The centre areas are described as “Mr William Forrest’s lands of West Quarter Zuildshields” and “Mr Thomas Walker’s lands of Over Quarter Yieldshields”.

[24] Mr Fletcher transcribed the old plan on top of a modern plan which showed Thornhome Farm and South Lodge lying between and to the north of the lands belonging to Sir Charles MacDonald Lockhart. As we understood Mr Fletcher’s evidence, the disputed area would lie to the north east of the old plan, perhaps off the plan itself, but there was no other plan in the National Library showing MacDonald Lockhart land any closer to what is now the applicants’ property.

[25] Mrs Fletcher’s father had acquired title to Thornhome Farm by disposition by the widow of Robert Forrest in his (John Livingstone’s) favour recorded GRS (Lanark) 7 May 1959. It was not suggested that the disposition specifically included the disputed subjects, but did include land immediately adjacent to it. The description (In the first place) refers to various pieces of land including Greencomb which the applicants particularly identified as being associated with the present subjects. The description refers to a disposition by Thomas Cleland, portioner of Yieldshields in favour of Robert Steuart of Brownlee recorded in an instrument of sasine recorded in the Particular Register of Sasines kept at Hamilton for Lanarkshire on 29 August 1803. An extract of the instrument of sasine was produced. The boundaries of the 1803 land are described by reference to the neighbouring landowners. None of these has the surname MacDonald Lockhart. That surname is not mentioned in any of the descriptions for other parcels of land mentioned by the 1959 disposition or in the inventory of writs attached thereto.

[26] We pointed out that the 1947 disposition on page ninth expressly excepted certain lands from the conveyance. These included (fourth) “the lands and farm of Over Quarter and others (part of the lands and barony of Braidwood)” described and disponed in a disposition by Sir Simon MacDonald Lockhart in favour of Robert Moffat recorded 24 May 1923; and (sixth) “the lands and farm of West Quarter and others (also part of the lands and barony of Braidwood)” described and disponed by a disposition by the trustees of Sir Simon Macdonald Lockhart ifo Mrs Elizabeth Pettigrew or Sommerville recorded 28 May 1923.

[27] The applicants wrote to Angus MacDonald Lockhart in 2010 enquiring as to the evidence establishing that he had owned the subjects. His reply dated 28 June 2010 assured the applicants that there had been a detailed investigation involving the estate’s solicitors and that the estate owned the land. However no evidence was offered.

[28] As we have indicated the respondents did not produce the title report which was used in support of their application for registration of the disputed subjects in their favour. Nevertheless Mrs Kirkhope indicated that she accepted the tenor of the report which apparently was that Angus MacDonald Lockhart was the residual owner of the ground. The respondents had paid £2,000 for the ground and had incurred significant legal fees in the acquisition process. The documents before us indicated that the respondents had granted a standard security in favour of Angus MacDonald Lockhart over the whole strip they were acquiring from him in support of a separate overage agreement. This matter does not appear relevant for present purposes.

Evidence of possession

[29] As we have indicated the disputed area is triangular. It is about 133 sqm in extent. To the south-east it runs alongside the carriageway of Yieldshields public road. To the north-west it adjoins South Lodge for about 33m where the boundary is marked by a thick hedge. To the south-west it is marked by a track from the main road running across the verge to the respondents’ field gate. This is its widest point being about 7 – 8m wide. The foregoing measurements have been scaled from the Keeper’s plan and are not intended to be definitive.

[30] Beside the hedge there are a number of large holly bushes. At the eastern part of the area Yieldshields Road contains a sharp bend. There are chevron signs placed on the verge at this location. The disputed area is mostly grass but besides the holly bushes there are also some shrubs and plants. There is also an electricity pole and telephone pole.

Evidence for applicants as to possession

[31] The original access to South Lodge was across the verge, i.e. across the disputed area, directly from Yieldshields Road. This had been the case prior to the applicants’ moving in in 1976. They closed the access in about 1979 and a new vehicular access was formed just to the south of stone piers marking the access drive to Thornhome House.

[32] As part of various changes being made to the property at that time, the applicants commenced maintaining the area between the old access and the track to the field at the west by removing detritus including old railway sleepers. The area to the east had been maintained by the previous occupants. After purchasing South Lodge in 1984, the applicants used the disputed area for storing building materials and reopened the old access from time to time. They planted bulbs and shrubs including a new holly bush and a rosa rugosa bush. They planted snowdrops and daffodils. They carried out maintenance by cutting the grass and trimming the existing bushes and hedge. They also cleared litter from passing vehicles. The grass cutting and hedge trimming and cutting of the holly bushes was carried out on a regular basis. This continued after 2001 and after the registration of their title in 2005 to the present time. The continuing maintenance by the applicants of the area was spoken to by themselves, their son, and the deponents in all the affidavits. Photographs taken at various times over the years showed the area having been maintained between 2004 and 2018. The applicants were unaware of anyone else maintaining the area, apart from a neighbour whom they had paid on one or two occasions.

[33] The applicants’ son, Graeme Fletcher, is a landscape gardener. He lived at the property between 2013 and 2015 while the applicants were away. He regularly maintained the subjects by grass cutting, strimming, hedge cutting and collecting litter on a regular basis during this period.

[34] The applicants had also obtained planning permission in 2007 to reopen the vehicular access over the subjects. They decided not to continue with the access, not they said because of the competing title of the respondents, but because they had concerns about privacy from the main road.

[35] The disputed subjects are open to the road and the maintenance activities would have been obvious to the respondents, just as it was obvious to the various neighbours who gave evidence by way of affidavit.

[36] As far as competing possession was concerned Mr Fletcher accepted there had been perhaps three or four occasions when the respondents’ tractor had driven over the area in taking access to and from the adjacent field gate during silage operations. The evidence is not entirely clear whether the extent of such use of the disputed subjects and associated damage was, as it were, deliberately excessive. On one occasion the respondents remonstrated by letter dated 19 August 2008, although there had been a previous letter dated 18 January 2007 requesting that anyone accessing the field via the gate should not encroach upon the applicants’ property.

[37] In 2017 a neighbour’s son had turned up on a sit-on mower cutting some of the grass without invitation.

[38] The applicants had given permission to various people to cut the holly on the subjects for making garlands at Christmas time. There was a suggestion that the respondents had also given permission to others to cut holly. The applicants were not aware of anyone else cutting holly without their permission and noted that there was another bush belonging to the respondents nearby which would have also been available.

[39] It was accepted that the council cut verges in the area about once a year. However, the machine would not in fact succeed in cutting grass on the disputed area for the simple reason that it was already well maintained and not of a length sufficient to be reached by the council’s equipment. The equipment would only protrude a few feet into the disputed area which is much wider.

Evidence as to possession by the respondents

[40] Mrs Kirkhope did not accept the pre-1979 access had been a vehicular one. She accepted that the respondents did not maintain the land at the disputed subjects. They had better things to do and did not wish to spend time there which was the scene of various road accidents. She could not exclude the possibility that her husband might have paid someone to maintain the area.

[41] Mrs Kirkhope disputed a number of points of detail in the written statements and affidavits. However she did not dispute the central point that the applicants had been carrying out gardening type maintenance for many years. She accepted that she had been aware that this activity had been taking place. She accepted that apart from the council at some point each year, no one else but the applicants maintained the ground. The respondents had done nothing to prevent the applicants from maintaining the area and keeping it tidy.

Submissions for applicants

[42] The applicants produced a detailed written submission. In summary it was submitted that on the basis of the historical title evidence, the respondents could not be said to own the land. On the other hand the applicants had a registered title ranked in priority to the respondents’ title.

[43] The applicants drew our attention to s.1 of the 1973 Act and the principles applicable to prescriptive possession as stated by the Lord Justice Clerk in Hamilton v McIntosh Donald Ltd. The applicants had had a habile title since 2005 and had possessed the disputed area openly, peaceably and without judicial interruption for at least 10 years. The actings relied upon were referable to ownership. They were open and continuous. The activities were consistent with the use to which the ground could be put. With reference to Strathclyde (Hyndland) Housing Social Ltd v Cowie there was nothing like the type of counter-activity occurring in that case – i.e. the erection of bollards and the dumping of 12 tonnes of sand – which could be said not to make the applicants’ use of the land peaceable. Any counter-actings were of a sporadic and minimal nature.

Submission for respondents

[44] It was submitted that the sasine deeds were not clear. It was likely that the MacDonald Lockhart family had owned most of the land at Yieldshields on the basis of Irving’s research. The respondents had acquired and paid for the land in a regular manner.

[45] It was submitted that cutting the grass did not establish possession. The respondents had possessed the land in the sense that they had paid for it. Given the level of confrontation between the parties the applicants’ possession could not in any event be described as “peaceable.” It was a matter of the applicants’ choice to cut the grass and maintain the area.

[46] On the other hand the respondents had acquired a much larger strip and it would make no sense for the strip to be split by the removal of the disputed area from their title.

Discussion by Tribunal

Title

[47] The respondents did not mount a serious challenge to the Keeper’s position that they had not demonstrated a good title at the time of the 2008 registration. The background indicates there has been other litigation between the parties. However there is no suggestion that the respondents have sought to interrupt any prescriptive possession carried out by the applicants by means of judicial proceedings on the basis that they, the respondents, have a better title. Nevertheless the Keeper’s note on the respondents’ title sheet only mentions the prior disposition in favour of the applicants, not the doubts expressed by the Keeper in correspondence and in this process. The respondents’ pleadings do not accept there is any doubt as to their title, and this position was maintained by Mrs Kirkhope at the hearing. As it transpires the title question will become academic in the light of our conclusions on prescriptive possession, but in case we are wrong about that we shall discuss the title position here.

[48] As we have indicated, the barony title of Braidwood has not been particularised in any deed before us and we cannot conclude that it originally included the dominium utile of a wide swathe of land at Yieldshields. According to Irving’s historical account, the portioners of Yieldshields lands during the 1700s were named others, not any member of the MacDonald Lockhart family. The MacDonald Lockhart estate plan of the 1820s shows that the family did own some land there, including part of the West Quarter, but not in the immediate vicinity of the subjects. We are unable to conclude which quarter of Yieldshields would have encompassed the subjects at the time. It is also uncertain whether the MacDonald Lockharts acquired more land at Yieldshields after the date of the 1820s plan, since Irving’s book does not provide dates as to when land was acquired by them. However it can be seen from the 1947 disposition that Sir Simon had sold land forming the Over Quarter and the West Quarter in 1923, so if the present subjects and surrounding area were ever in the ownership of the MacDonald Lockharts it is entirely possible that they were sold at that time.

[49] Moreover it can be seen that a proportion of the land forming part of the 1959 disposition of Thornhill Farm is probably the same land once belonging to Thomas Cleland in 1803. It seems too much of a coincidence that this is not the same Thomas Cleland owning land in the West Quarter and Middle Quarter at the time of the division of commonty in the 1770s. The description in the instrument of sasine of the 1803 land makes reference to land at the boundaries belonging to specific landowners – we do not list them here - but there is no mention of such land belonging to any MacDonald Lockhart. This is consistent with no MacDonald Lockhart being mentioned by Irving as a landowner in possession at Yieldshields at about this time. So in other words the 1959 title can be traced back to a time when the evidence suggests that the MacDonald Lockharts did not own the dominium utile of land in the vicinity of the subjects. That title does not mention any MacDonald Lockhart in the context of any of the other parcels of land referred to.

[50] We do not conclude that the evidence excludes the possibility of Angus MacDonald Lockhart having been the owner of the subjects in 2008. The evidence is limited and incomplete. However, the evidence shows that where the MacDonald Lockharts historically did own particular land in the vicinity, that ownership did not extend over the subjects or Thornhill farm. Equally the evidence shows that the MacDonald Lockharts have in fact sold off land which, for aught yet seen, could have comprised the subjects. So in short, we are not satisfied that the respondents, through the 2008 disposition, can be described as the true owners of the disputed area. As the respondents’ title has not been shown to have any particular provenance, it follows that we are dealing with a competition between two a non domino titles. This conclusion reflects the Keeper’s position.

Prescriptive possession

[51] The question is whether the applicants have satisfied the requirements of prescriptive possession such that their title becomes unassailable and the respondents’ interest can be removed from the land register. It is thus necessary to consider whether the disputed area has been possessed by the applicants for a continuous period of 10 years openly, peaceably and without judicial interruption since the registration in their favour on 10 March 2005.

[52] As we have indicated the area in question is essentially verge, albeit as it proceeds westwards, a very wide verge. We would infer that at least part of it will be regarded by the local authority as part of the adopted road. This can be inferred by the chevron signs being located there and the fact that the council have sought to cut the grass there. However we recognise that the local authority’s extensive powers over verges under the Roads (Scotland) Act 1984 are independent of underlying ownership.

[53] We were given a detailed account of the acts on behalf of the applicants said to constitute possession, narrated above. We accept that evidence, coming as it does from numerous sources and supported by photographs. As we have indicated, the burden of the evidence was accepted by Mrs Kirkhope. The only possible material point she did not accept was whether the old entrance had been vehicular, she being of the view it was pedestrian only, but in our opinion the photographs demonstrate that it was vehicular.

[54] In approaching the sufficiency of acts of possession, we have in mind the nature of the subjects and the uses to which they can be put: point (4) in Hamilton v McIntosh Donald Ltd. By their nature the subjects are verge. Both parties accepted the risk of cars failing to take the corner and ending up on the disputed area, as had occasionally happened in the past. So it is not surprising that the applicants have not attempted, for example, to construct hard structures there. However the area does affect the setting of the Lodge. It seems that the type of acts relied upon, namely the planting of shrubs, bushes etc. and the maintenance of the area by cutting the grass and trimming the bushes and clearing litter are the sort of acts of possession which might reasonably improve the wider setting. So we think the various activities can be described as acts of possession.

[55] Although the prescriptive period cannot commence prior to 2005, it is not unfair to infer that the applicants, by carrying out these activities and others previously, were already in possession of the subjects in 2005. We agree that the actings were overt. The maintenance of the ground was carried out regularly and in that sense can be said to have been continuous. The evidence does not suggest that the applicants’ activities were spasmodic or sporadic.

[56] The only matters which appear to run counter to the applicants’ position is that on a few occasions the respondents’ tractor drove over the area causing some damage. In our opinion these acts, such as they were, amounted at most to occasional intrusions which were objected to. This would not in our opinion be sufficient to interrupt the applicants’ possession: point (6) Hamilton v McIntosh Donald Ltd.

[57] It is the case that the applicants stopped work on the new driveway in 2009 when faced with the letter on behalf of the respondents implying that the latter were now the true owners. The letter is remarkable in failing to point out that the Keeper appears to have regarded the new title, if anything, as more precarious than that of the applicants. Whatever inference may be taken from the correspondence and the applicants’ reaction thereto, we do not think the letter had the result of interrupting possession. The applicants duly responded to the Scottish Conveyancing Services’s letter of 12 August 2009 once they had investigated the situation. They refuted the respondents’ claim of ownership. Although they did not complete the new entrance, the acts of gardening type maintenance continued on the ground. We have found that these constituted acts of possession, and the applicants continued in these notwithstanding the letter. Their possession was not interrupted.

[58] We do not think the respondents are well founded in arguing that because relations between parties generally were not “peaceful”, that prescription could not continue to run. It is the acts of possession which require to be peaceful; i.e. without force (nec vi) and there is no question of the applicants ever requiring to use force in order to maintain the disputed area.

[59] We understood the respondents to allude to a suggestion that occupation of part of the surrounding area – i.e. the lengthy verge area fronting their field – meant that they might be taken to have possessed the disputed subjects as part of the same title. Apart from the fact that we do not think we have heard any evidence as to acts of possession of the wider area, we think that prescription is here being relied upon to establish a new right, as opposed to establishing the extent of a right which already exists. In these circumstances we do not think that a more liberal effect can be given to acts of partial possession: point (7) in Hamilton v McIntosh Donald Limited.

Conclusion

[60] We are satisfied that the applicants have possessed the subjects openly, peaceably and without judicial interruption for a period of 10 years or more, following upon the registration of a real right in the land register. Their title is accordingly exempt from challenge.

[61] It follows that the Keeper should rectify the land register by deleting the disputed area from the respondents’ title, as well as the title of Alister Kirkhope and Isla Kirkhope. There is no reason why the Keeper should continue to withhold indemnity from the applicants’ title.

[62] We do not propose to make a formal order at this stage, in the expectation that the Keeper will be able to take appropriate action in the light of this opinion. For the avoidance of doubt this opinion is intended to be a decision for the purposes of the Tribunals and Inquiries Act 1992.

Appendix


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 14 August 2019

Neil M Tainsh – Clerk to the Tribunal