OPINION

James MacDonald and Mrs Pamela MacDonald (Applicants) v Keeper of the Registers of Scotland (The Keeper) and Bernard Kay and Mrs Brenda Kay (Interested Parties)

Property: part of subjects at Gateyard House, Balcurvie, Leven

Introduction

1. This is an application under section 82 of the Land Registration etc. (Scotland) Act 2012 (“the 2012 Act”) for determination of a question relating to the accuracy of the land register. The applicants are in dispute with the interested parties as to the ownership of a small area of ground alongside the carriageway of a public road. The interested parties have recently succeeded in registering title to the ground which, they contend, was hitherto embraced by a sasine title. The applicants contend that the land register is inaccurate in showing the disputed area as belonging to the interested parties, and should be rectified by excluding the disputed area from the latters’ title. The applicants themselves hold an unrecorded disposition to the disputed area in their favour which the Keeper has refused to register due to the existence of the entry in favour of the interested parties.

2. The issues in this case are whether the interested parties’ underlying sasine title had conveyed to them the disputed area, or in any event whether their title was habile to include the disputed area and had been fortified by prescriptive possession.

Procedure

3. The Keeper did not lodge Answers but set out her position in a letter to the Tribunal. Essentially she adopts a neutral position. We held a site visit on 28 August 2018 and a hearing on 11 September 2018 and 3 following days subject to various adjournments. The applicants were represented by Mr Michael Upton, advocate. The interested parties were represented by Mr Robert Hunter, solicitor advocate.

4. At the hearing both applicants gave evidence. They also led witnesses namely Mr John Kane, Mr Drew Clark, Mr Alan Brown, Mr Donald Gillespie, Mrs Georgina Keiller, Mr Andrew Keiller (both by video link), Mrs Margaret Shepherd, and Mr Graham Wilson. There was a lodged affidavit by the late Mabel Morrison. The interested parties themselves gave evidence. They called Mrs Tracy Clyne, Ms Carole Walker and Mr Cameron MacKenzie. The also produced an affidavit by Mrs Elizabeth Gaffney.

Legislation

The Prescription and Limitation (Scotland) Act 1973 (“The 1973 Act”) provides-

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

(i) that land; or

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

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

(i) that land; or

(ii) land of a description habile to include that land,

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

Cases

Auld v Hay (1880) 7 R. 663
Louttit’s Trs. v Highland Ry. Co. (1892) 19 R. 791
Mags. of Ayr v Dobbie (1898) 25 R. 1184
Johnstone v Meikle & Murray (1901) 9 S.L.T. 74
Logie v Reid’s Trs. (1903) 5 F. 859
Aitken’s Trustees v Caledonian Railway Co. (1904) 6 F 465
Houstoun v Barr 1911 SC 134
County Council of Perth and Kinross v Magistrates of Crieff and Auchterarder 1933 SC 751
Nisbett v Hogg 1950 SLT 289
Brookfield Developments Ltd v Keeper of the Registers of Scotland 1989 SLT (Lands Tr) 105
Suttie v Baird 1992 S.L.T. 133
Hamilton v McIntosh Donald Ltd 1994 SC 304
Harris v Wishart 1996 SLT 12
Kaur v Singh (No.1) 1999 SC 180
Elmford Ltd v City of Glasgow Council 2001 SC 267
Safeway Stores Plc v Tesco Stores Ltd 2004 SC 29
Board of Management of Aberdeen College v Youngson 2005 SLT 371
Yaxley v Morrison 2007 SLT 756
Moncreiff v Jamieson, 2008 SC (HL) 1
Hamilton v Nairn 2011 SC 49
Burton v Keeper of the Registers of Scotland 2014 SLT (Lands Tr) 69
Mathers v Keeper of the Registers of Scotland 2015 SLT (Lands Tr) 109
Campbell-Gray v Keeper of the Registers of Scotland 2015 SLT (Lands Tr) 147

Textbooks

Burns, Conveyancing Practice (4th ed.), p. 328
Cusine & Paisley, Servitudes and Rights of Way, paras. 3.47 to 3.52
Gretton & Reid, Conveyancing (4th ed.), para. 8-13
Gretton & Reid, Conveyancing (5th ed.), para. 6-11
Halliday, Conveyancing Law & Practice (2nd ed.), para. 33-11
Johnston, Prescription & Limitation (2nd ed.), paras. 18.20 & 18.23 & 19.12
Lewison, Interpretation of Contracts (6th ed.), sections 7.02-7.03
Montgomerie Bell, Conveyancing (3rd ed.), p. 600
Rankine, Land-Ownership (4th ed.), pp. 110-111
Stewart & Sinclair Conveyancing Practice in Scotland(7th ed) pp 319 and 331.
Reid & Gretton, Land Registration, Ch. 11

Background facts and circumstances

5. The applicants are proprietors of a house named the Old School House, Durie Place, Windygates, Leven. They bought the property in 2011. The property has been on a registered title since 1996, namely FFE13391. We understood it ceased being a school and/ or a schoolhouse in the 1980s. The public road Durie Place lies to the east of these subjects.

6. The interested parties own Gateyard House, Balcurvie, Leven. It is also known as Gateyard Cottage. It lies adjacent to the applicants’ property, but has a different postcode. The interested parties acquired the property in 1992 on a sasine title. The property including the disputed area has, however, recently been registered in the Land Register FFE111151 as a result of a voluntary application by the interested parties. As can be seen from the title plan, Gateyard House lies perpendicular to, and to the north east of the Old School house. It also lies adjacent to Durie Place.

7. As Durie Place runs northwards from Windygates, the road carriageway sweeps 900 to the north east, where it becomes known as Main Street, Balcurvie. At this point the carriageway creates a triangular area lying roughly between the two properties. The west side of the triangle runs adjacent to the wall, fence and gates of the Old School House, and across a footpath for about 16.5m in total. The north edge of the triangle runs adjacent to the front of Gateyard House, alongside a footpath, for about 14m. The third side of the triangle to the southeast is the curve of the carriageway of Durie Place running for about 20m. We shall refer to the triangle as the disputed area. We have taken the above description and dimensions from an annex to the application before us (appended). The above description and measurements are not intended to be definitive.

8. To the east of Gateyard House there is an unnamed track or lane which runs northwards off Durie Place. We understood this lane provides access to ground to the rear of the Gateyard property, and further leads to Fa-Latch Road. A couple of feet in front of Gateyard House there is a footpath running from Durie Place westwards. This leads to a garden gate pertaining to Gateyard House, as well as a number of other properties in the area. Part of the footpath runs between the parties’ respective properties. Part of the solum of the footpath as appears in the interested parties’ title also lies within the disputed area. To the immediate south of the footpath, and also forming part of the disputed area, is an area of hardstanding. This forms an access between Durie Place and the gates and internal courtyard of the Old School House. This area is subject to an express servitude in favour of the Old School House, which is shown marked in blue in the respective title sheets (“the blue access.”) The title sheets show the footpath and the blue access running beside one another, although on the ground, the hardstanding of the blue access and the footpath overlap so as to be partly indistinguishable.

9. As we have indicated, the disputed area includes an area of hardstanding for the blue School House access and the footpath. The remainder is grass. We would roughly estimate the area of grass and the hard access including the footpath to be of the order of 140sqm. Where the grassy area meets the curve of the carriageway of Durie Place, it rises fairly sharply for one or two feet before flattening out. The grassy area as it runs southwards adjacent to the Old School house becomes a more conventional “verge” shape a few feet wide, where it is overgrown with trees.

10. The interested parties’ registered title derives from a disposition in their favour by Thomas Clark and another recorded GRS (Fife) 24 April 1992 (“the 1992 Disposition”). The dispositive clause provides a description of subjects “that dwellinghouse known formerly as Gateyard House and now Gateyard Cottage, Balcurvie, Windygates with the land attached…” and continues with a description by reference to a disposition by the Reverend Thomas Crichton ifo The City and County House Purchase Company Limited recorded GRS (Fife) 2 January 1919, (“the 1919 disposition”) subject to an exception not relevant for present purposes. The dispositive clause in the 1919 disposition includes the words “bounded by the high road on the east and south …” and “by a road and the lands of Wester Balcurvie in the west and north parts...”

11. The property section of the registered title for Gateyard House includes two servitudes. Only the second of these appears relevant for present purposes, namely:-

“(Two) a servitude right of access for vehicular and pedestrian traffic along the front or south of the subjects in this title and to give access to the garden ground by the garden gate lying to the west of the subjects in this title.”

12. The above wording derives from the dispositive clause of the 1992 disposition, which provides “together with (by way of conveyance and not exception) …(THREE)…” the above mentioned right of access “so far as we can competently grant the same …” The servitude wording does not appear in the 1919 disposition.

13. The Old School House title has never included the disputed area. The former sasine description contained a reference to a disposition by William Craigie Jnr ifo the School Board of the Parish of Markinch recorded GRS (Fife) 3 December 1895 (“the 1895 Disposition”). The sasine extract of the 1895 disposition refers to the subjects being bounded “… on the east by the School Wynd and the Common …”

14. The extract of the 1895 disposition refers to a plan signed and annexed to it. At that time the register of sasines did not preserve or copy title plans, and the original deed plan has not been found. However a copy plan with no apparent signature was found in the Keillers’ solicitors’ conveyancing file. There was some discussion whether the copy plan was a copy of the deed plan. Mr and Mrs Keiller had sold the property to the applicants in 2011, as further discussed below. Title plans had been requested by the selling agents at the time the property was marketed. Details on the copy plan tie up with the verbal conveyancing description, namely a specified area 0.210 acres, “bounded... on the north by a footpath between the subjects hereby disponed and the property of Thomas Crichton...” The footpath can be seen to be the same footpath as presently exists between the two properties. In terms of the 1919 disposition, Gateyard House belonged to the Rev Thomas Crichton. The style of the plan is consistent with the period. The copy plan has no signature, but we understood from Mr Wilson who is the applicants’ conveyancing solicitor, that plans on deeds in that period were unlikely to have contained elaborate docquets of execution. So there exists the possibility that the copy plan is simply a poor one which did not cover the signature of the grantor on some corner of the page. We were persuaded that the plan is probably just that, i.e. a poor copy of the original title plan. This will become significant in terms of extrinsic evidence. The plan shows the east boundary of the School House property to be School Wynd, now Durie Place, and more particularly what appears to be a verge or footway associated with that road running up to the disputed area. It also shows much of the disputed area to be a triangle marked “common ground” alongside School Wynd.

15. The title sheet for the applicants’ property includes an express servitude in respect of the blue access. The relevant clause provides for:-

“A servitude right of access and egress at all times and for all purposes for pedestrians and private motor cars over and across the servitude area”.

As we have indicated, this is the blue area on the title sheet plan and which runs past the building Gateyard House.

16. The above wording derives from a grant or purported grant by deed of servitude by the interested parties to Mr and Mrs Keiller in 2011. They were the applicants’ predecessors in title at the Old School House between 1996 and 2011. The purported restriction to the access has the implied effect of preventing commercial vehicles attending the applicants’ property, even for “domestic” deliveries etc. It is the source of much friction between the present parties. The evidence indicated that there had been no particular problem when the Keillers owned the property, who freely used the access for unrestricted vehicles. However, the Keillers emigrated to New Zealand and while they were trying to sell the property from a distance, would be purchasers raised issues about the access. The interested parties would park a car on the disputed area across the School House gates which they said was in order to deter burglars while the property was vacant, stating that this activity was agreed to by the Keillers. At this point there was a dispute in the evidence. However we do not think it necessary to narrate or attempt to analyse the full chapter in order to deal with the issue in hand. Suffice to say that at the time of the grant of servitude to the Keillers in 2011, in the words of Mrs Kay, the Keillers had been desperate to sell.

17. It would appear that from about 2013 until June 2015, Fife Council had contended in correspondence with the interested parties’ solicitors that they owned the disputed area. In terms of an email dated 9 June 2015, the council conceded the ground did not belong to them. The email also referred to s115(1) of the Roads (Scotland) Act 1984 which contains provisions in the event of a road being stopped up and ceases to be used as a road. The email did not however state that any part of the road had in fact been stopped up, and there is no suggestion before us that a stopping up order has been made.

18. Subsequently on 4 September 2015 the interested parties applied for voluntary registration of title to Gateyard House, so as to include the disputed area. This was objected to on behalf of the applicants on the basis that the interested parties’ title was not habile to include the disputed area and that the interested parties had not possessed the land for the prescriptive period. The application was rejected by the Keeper on 20 February 2016, apparently because of the omission of the supporting 1919 disposition. The Keeper allowed the application to be renewed, which the interested parties’ solicitors did in terms of a letter of 23 February 2016. There was further correspondence on the matter albeit without reference to the applicants’ agents.

19. In the meantime a Douglas Christie purported to grant a disposition of the disputed area dated 2 March 2016 in favour of the applicants. We understood Mr Christie to be the owner of the residue of the Durie Estate. The applicants’ solicitors submitted an application for registration of the applicants’ title to the disputed area on 18 March 2016. However, on 30 November 2016 the Keeper granted the interested parties’ application, under Title No. FFE111151. Subsequently on 13 December 2016 the applicants’ application for registration based upon the Douglas Christie disposition was rejected by the Keeper, because of the existence of the now registered competing title of the interested parties.

Further mapping evidence

20. An old estate map said to go back to 1834 shows the Gateyard House or cottage “jutting” into a main road, and implying that the site of the disputed area was within the curtilage of the road. An ordnance survey map of 1856 also shows the main road covering the site of disputed area. An ordnance survey map of 1895 shows the same. A larger scale 1895 ordnance survey map shows most of the disputed area delineated within pecked lines, but “linked” to the road itself by means of an area brace symbol “∫.” A small scale map of 1920 shows the disputed area to lie within the precincts of the main road. A larger scale ordnance survey map of 1960 marks the disputed area with a pecked line which extends along a footway southwards along Durie Place, thus indicating that the disputed area and the footway were linked.

21. The applicants also produced a map prepared by Fife Council dated 13th October 2011 showing most of the disputed area coloured green and marked “Land Maintained by Fife Council.” Another plan produced by Fife Council, bearing to be by their Estates Department dated May 2014, shows the carriageway of Durie Place and a 2m verge extending into the disputed area hatched in blue indicating the “extent of the adopted highway.” Much of the remainder of the disputed area is hatched in red. A plan by Scottish Power dated 2 May 2018 was produced showing various electricity cables running under the disputed area and thence to various properties in the area.

Evidence about possession

22. The applicants moved into the Old School House on 7 July 2011. The second applicant, Mrs MacDonald, indicated that at this time the first interested party, Mr Kay, warned them that they could not have delivery vehicles deliver goods to the property because of the blue access restriction contained in the deed of servitude. Mrs MacDonald’s position was that she had been unaware of the restriction until after the transaction settled. The applicants’ written evidence indicates that a sign was put up by the interested parties on 9 September 2011. The sign is on the wall of Gateyard House overlooking the access and states:

“POLITE NOTICE ACCESS STRICTLY FOR PRIVATE CARS ONLY”

23. Mrs MacDonald further stated that prior to 2015 the grassy area of the disputed area was maintained by Fife Council. On 14 April 2015 Mr Kay had told the council’s grass cutters that the ground was in dispute and that they should stop cutting the grass. Mr Kay then cut the grass but had not done so previously. The council would cut the grass every four to six weeks during the summer. Since 2015 Mr Kay would cut the grass every four to five weeks. In 2016 Mr Kay cut down a tree on the disputed area and in December that year erected wooden posts and planted a hedge to cordon off the disputed area from the carriageway of the public road. This was understood to coincide with the time when the Keeper had registered the interested parties’ title to the disputed area.

24. Mr MacDonald’s evidence was to similar effect. Because the council would cut the grass, he had understood that the council owned the disputed area. Prior to concluding missives for the purchase of the property he had had to manoeuvre his car around Mr Kay’s parked car at the gates to the property, and in a conversation Mr Kay had not mentioned the need for a deed of servitude. Mr Kay had cut the grass to his knowledge since 2015, and had a practice of doing so before he had visitors. Mr Kay parked his car on the disputed area. At some point after 2011 tarmac or hardcore was placed on part of the grassy area for parking. One or two concrete blocks were placed in a corner of the disputed area not long after they had moved in. Mr MacDonald had made a complaint about his then solicitor for not making him aware of the restriction to the access.

25. Mr Kane is a close a neighbour and has lived next to the properties for approximately 24 years. He indicated that the council had maintained the disputed area for many years. Mr Kay started maintaining the ground about two years ago. In cross-examination he indicated that he had seen Mr Kay cut the grass in the 1990s, i.e. that both the council and Mr Kay were cutting the grass. He accepted he did not have a good memory for dates.

26. Mr Clark had lived at Gateyard House with his parents between 1977 and 1989, and after he left the house he continued to visit his parents until 1992 when the property was sold to the interested parties. His parents would park on the grassy area but would be told not to do so by the council when they came to cut the grass. The council always cut the grass, and no one else. His parents would not, however, park on the access route through the disputed area to the Old School House. At that time the school janitor lived there who would remonstrate if the access was blocked.

27. Mr Brown has worked with Fife Council for 34 years as a gardener carrying out ground maintenance work. He cut the grass at the disputed area for 20 years, starting in about 1993. During the growing season he would cut the grass on a two week cycle, say every 10 to 14 days. He was not aware of anyone else cutting the grass during this period. He thought the grass was uncut during this period and referred to the grass as being a mess when it was being cut. In about 2015 a couple had told him to stop cutting the grass because it belonged to them.

28. Mr Gillespie has lived at a nearby farm all his life. He was born in 1969. He would go past the disputed area on his way to and from primary school perhaps 10 times per week. Between 2010 and 2018 when his business had taken him to Wales, he would go past the area three or four times per week at the most. He had never seen anyone except council employees working on the grass.

29. Mrs Keiller and her husband had resided at the Old School House between 1996 until they emigrated to New Zealand in 2010. A previous sale transaction had fallen through and they did not sell the house until July 2011, to the applicants. Between January 2001 and December 2009 Mrs Keiller had run a party plan business which would regularly receive deliveries to the door via delivery vans. There was no restriction on the type of vehicles taking access to their courtyard. At some point Mr Kay put a concrete kerb stone between the access drive and the grass, but had not communicated with the Keillers on the matter. The Keillers would move the kerb stone if it was in the way. The council always maintained the disputed area. She had complained about the council cutting down a tree on the disputed area and had been informed that the land was council land. The council would cut the grass at least twice a year and probably more. She had never seen Mr Kay cutting the grass and was 100% positive about this.

30. Mr Keiller worked nine to five and had thus never actually seen people cutting the grass on the disputed area. Mr Kay would park his car on the disputed area which Mr Keiller believed to be common ground belonging to the council, as he put it. Mr Kay parked his car there permanently. Mr Keiller had had no difficulty with this.

31. Mrs Shepherd has resided at 12 Cameron Crescent for approximately 33 years. This property can be accessed via the footpath running from Durie Place in front of Gateyard House running westwards to an area known as Sandydykes. She was aware that the council stopped cutting the grass of the disputed area in about 2015. Mr Kay had not cut the grass there when Mr and Mrs Keiller lived at the School House, i.e. up until 2010. In using the footpath she had constantly walked over the grass when going south down Durie Place to shop, to take her children to primary school and to go to church. She had never been prevented from doing so. Before her retirement she had been a facility officer with the NHS and was involved in negotiations with Fife Council for the ground maintenance of NHS properties. She thus knew certain employees of the council. She would expect their rota to cut the grass about once every six weeks. She had not seen Mr Kay cutting the grass until he recently put the fence up. Mr Kay parked on the grassy area and did this often. Her statement refers to the first interested party in unflattering terms but she did not accept there were personal reasons for giving evidence for the applicants.

32. The applicants also produced a letter from a local farmer, namely Mr Alexander MacPherson. We understood he did not give evidence on account of ill health. He has lived at a nearby farm since 1960. He was aware that the council cut the grass of the disputed area and the last time he had seen this would have been in about 2010. The area was never used by anyone at Gateside House apart from parking, but the occupants had been told to remove the cars from the grass.

33. The applicants also produced an affidavit sworn by the late Mabel Morrison dated 15 November 2012. She had lived adjacent to a property known as the Temple which lies about 100m to the north of the disputed area. Her affidavit mentions that the Old School House has always been accessed from the main road via the driveway in front of Gateyard House; i.e. across the disputed area and that deliveries of fuel, coal and firewood have always been made directly into the School House. School children have in the past played on the grassy area and the grassy area was cut by the Council, but in previous years had been cut by local parents and grandparents.

34. The second interested party, Mrs Kay, indicated that the interested parties had always understood that the ground to the front of their house, being the disputed area, belonged to them. This had been clarified by a letter from their solicitor dated 13 September 1995 stating: “You also own the ground that lies between your house and the road to the south of it”.

35. After purchasing the property in 1992 the Kays lived in a caravan parked on the disputed area for about 4 months while renovation work was being done. An area at the corner of the disputed area and Durie Place had become a mess with tyre marks. Her husband reseeded it and put kerb stones there. The council would cut the grass on occasions, but only about twice per annum. Her husband had cut the grass since 1992. He would cut the grass sometimes weekly. She called the area their garden. They had asked the council workmen why they were cutting the grass to which they replied “because it is there”. Her husband would cut the grass at different times of the day. The hardstanding area placed on the grass used for parking had been placed by a builder working at the School House, not the interested parties. The interested parties had told the council workers to stop cutting the grass in about 1993 or 1994, as well as in 2015 when they ceased to cut the grass. Since moving to the property the interested parties had parked cars on the disputed area. In cross-examination she accepted there had been no issue of access when Mr and Mrs Keiller lived at the Old School House. When asked about activities prior to 2015, she emphasised that since 2015 they had been reseeding the grass on a weekly basis and cutting the grass, growing the hedge and feeding it. We did not understand the interested parties to dispute the fact that the fence and hedge between the grassy area and the carriageway were erected and planted by them in December 2016.

36. The second interested party’s evidence was much to the same effect. He disputed that the council had cut the grass as often as every 10 to 14 days; they would only do so every six to eight weeks. He himself would regularly cut the grass. He had installed an electric plug outside the house to make his job easier with an electric lawnmower. He would cut the grass outwith the growing period in February.

37. Mrs Clyne had known the interested parties since she was a girl. She lived locally. The interested parties had parked cars on the disputed area. She had not seen the council cutting the grass but had seen Mr Kay cutting the grass from 1992 onwards. In cross-examination she thought the fence had been put up maybe 10 years ago or about five to 10 years ago.

38. Ms Walker has lived in the area for 41 years and her mother lives next door to the Gateyard House at the property Sevenair. She would visit her mother every day. There had always been cars parked on the disputed area which she understood to belong to the owners of Gateyard House. She had seen Mr Kay cutting the grass prior to 2015, i.e. from a time since 1992. She did not think the council cut the grass that often. She had not seen anyone walking across the grass. She was friendly with the interested parties.

39. The interested parties also produced an affidavit of Mrs Elizabeth Gaffney. She used to live a few minutes away from Gateyard House. She knows the interested parties. She also passes the disputed area every day in her car. There had always been cars parked in the disputed area belonging to the owner of the Gateyard House. Mr Kay had since 1992 cut the grass and tidied the disputed area.

Submissions for applicants

40. Mr Upton sought a finding to the effect that since 25 February 2016 there has been an inaccuracy in the land register in respect of Title FFE111151 in that it extends to the disputed area. Referring to Reid & Gretton Land Registration at 11.4 a deed granted in the absence of title is invalid, and that an entry on the Land Register which reflects its terms is inaccurate. The same is true of a deed granted in the absence of title to part of what it bears to grant. Rectification should bring the register into line with what was already the legal or factual position so that it is, once more, a proper mirror of the title. The land register would be inaccurate should it be concluded that the interested parties had not had a sasine title to the subjects. In that event the applicants would submit to the Keeper for registration the disposition by Douglas Christie in their favour, providing the applicants with a title.

41. Turing to the interested parties’ underlying sasine title, the 1992 disposition referred to the description in the 1919 disposition describing the subjects as:

“Bounded by the High Road on the east and south and by a road and the lands of Wester Balcurvie on the west and north parts”.

Thus there was a reference to “bounded by a (high) road” i.e. a bounding description.

42. The applicants adopted the approach of the Tribunal in Campbell-Gray v The Keeper in identifying the first critical issue to be whether there is a bounding title which excludes prescriptive possession of the disputed area. Reference was made to the formulation of the Lord President in Suttie v Baird at p136:

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

43. Counsel analysed the Tribunal’s approach in Campbell-Gray, which included reference to Louttit’s Trustees v Highland Railway Co in which Lord Adam regarded an argument that “roadway” did not include the path running alongside it to be untenable and that where subjects are described as being bounded by a roadway: “It seems to me that every part of the roadway is excluded from the grant”. He referred to the general rule that where subjects are described “bounded by” a given feature, the presumed intention is to exclude the feature from the title.

44. Counsel recognised that there was a body of case law indicating that where the boundary feature is a public road rather than a private road, there is a rebuttable presumption that adjoining ownership extends to the road’s mid-line: Mags of Ayr v Dobbie LJC p1191, Lord Trayner p1193, Lord Moncrieff p1195; Lord Kyllachy in Johnstone v Meikle & Murray p75, Houstoun v Barr Lord Dundas pp140-141; Halliday, Conveyancing Law and Practice para 33-11 and Rankine, Land-Ownership pp110-111.

45. The import of the authorities was that the general presumption that the boundary feature is excluded is “less absolute” in the case of a public road meaning that the matter depended upon the most reasonable construction of the deed in question. Under reference to Lewison, Interpretation of Contracts, the deed should be construed as a whole.

46. Counsel also referred to the statutory definitions in the Roads (Scotland) Acts 1970 and 1984 which, consistently with Louttit’s Trustees, treated a verge as part of a public road. We drew parties’ attention to Hamilton v Nairn, in which counsel adopted a passage quoted by the court at [24] that the inclusion by Parliament of the verge in the definition of a road is consistent with the observations of Lord Murray in County Council of Perth & Kinross v Magistrates of Crieff and Auchterarder 1933 SC 751 at p761 that:-

“In its natural meaning and context (unless a more restrictive meaning is imposed upon the words from ‘context’ or ‘circumstance’), ‘road’ or ‘highway’ means and includes the whole area dedicated to public passage from ‘fence to fence’ (or, it maybe ‘building line to building line’) including the area, if any, occupied by footways of any kind”.

47. It followed that if the interested parties’ title did not extend to the mid-line of the public road, then nothing which was practically to be embraced by the word “road” in the 1919 and 1992 dispositions were included in the descriptions, which applied to the whole of the disputed ground. It was also pointed out that when their title was registered, no attempt was made to seek ownership up to the medium filum of the public road.

48. Turning to the maps produced in the case, it could be seen from these that the disputed area was simply part of a road. The brace symbol in the 1895 o/s map was positive evidence that the surveyor considered the triangle to be functionally part of the road, and was evidence against the possibility that Gateyard Cottage was linked by possession to the disputed area.

49. It could be inferred from the 1895 disposition copy plan that at that time the triangle was not being used as a carriageway, but the description of the disputed area as “common ground” reasonably meant that it was being used by the public. The plan showed a footpath leading to the common ground and being used to access local properties. It clearly showed that the “common ground” did not pertain to Gateyard House, the building being described in the plan as “Mr Crighton’s (sic) property”.

50. Had the 1919 disposition been intended to convey the disputed area, one might have expected it to say “bounded … by the southeast”, given that the disputed area has a significant southeast boundary. There was nothing in the words “bounded by the high road on the east and south” to mean that it carried subjects east or south of the structure of Gateyard House itself. In the context of the extrinsic evidence, in particular the 1895 disposition plan, there was nothing to suggest any subjects further south of the house itself were intended to be conveyed.

51. Reference was also made to the 1992 disposition’s reference in the dispositive clause to the subjects of servitude (THREE) providing “access… along the front or south of the subjects hereby disponed and to give access to the garden ground by the garden gate lying to the west of the subjects hereby disponed.” This could only be a reference to the access immediately to the front or south of the façade of the house. The old maps clearly showed that access had been taken along what is now the roughly surfaced driveway along the south side of the cottage. This was inconsistent with the view that the subjects extended further still to the south so as to include the disputed area. The servitude is qualified by the words “so far as we can competently grant the same” and appeared to be an expression of dubiety as to whether the then owners, the Clarks, had title to grant the servitude. The deed’s description of what it was conveying could not be taken to include ownership of the driveway since if it was doing so, then there would have been no need to grant a servitude over it. It could thus be informed that the area along the front or south of the subjects was excluded from the title.

52. In consequence it was submitted that the 1992 title was not habile to include any of the disputed area. Furthermore, any competing interpretation would require some means of determining how far southwards along Durie Place the disputed area extended. But there was nothing in the title to support the final southern point of the disputed area as anything other than an arbitrary point.

53. Reference was also made to a letter from a title researcher indicating that ground to the east of the Old School House was part of the public road through Balcurvie as appeared from deeds recorded in 1974 and 1975.

54. Accordingly, given the nature of the bounding title of the Gateyard House, alleged acts of prescriptive possession were irrelevant. Possession would only be relevant if we disagreed with counsel’s submission thus far. He referred to section 1 of the 1973 Act and submitted that if evidence of prescriptive possession was relevant, being a positive contention, the burden of proof would rest upon the interested parties to establish the requisite 10 years usage. It was submitted under reference to Safeway Stores plc v Tesco Stores Limited that the law placed little reliance on evidence of possessory acts undertaken after a dispute had arisen and here the dispute had arisen by about mid-2015. He emphasised that possession must have been continuous and clearly and unequivocally referable to ownership. The evidence required an act of possession undertaken openly so that anyone with a competing title could challenge the possession: Hamilton v McIntosh Donald Ltd LJC at p 321. Under reference to Safeway Stores Ltd it was necessary to hold a thing within the possessor’s control, with the intention of holding it as his own property, there had to be some significant element of physical control of the land and actual use or enjoyment, to a more than minimal extent, of the subjects in question. Under reference to Campbell-Gray, the possession must be referable to ownership as opposed to a subordinate right.

55. It was further submitted that in the context of a servitude right of vehicular access, parking on the servient subjects could be explicable as an aspect of enjoyment by the dominant proprietor of a right of vehicular access where the parking is reasonable incidental to the enjoyment: Moncrieff v Jamieson; Cusine & Paisley, Servitude and Rights of Way 3.47-3.52. In any event the parking could be seen merely as the right of a member of public to park on the verge of a public road.

56. It was also submitted that the law should approach with scepticism attempts to take into private control what had been for long periods public ground.

57. Turning to the evidence, it was submitted that the interested parties’ evidence amounted to no more than a scattering of occasional, discontinuous acts insufficient to meet the legal criteria for possession. The car parking was irrelevant. It was submitted that Mrs Kay was not a straightforward witness. She had indicated that the terms of the deed of servitude had been arrived at purely by the lawyers without reference to her, which had not been the case. Mr Kay’s credibility was damaged by the unchallenged evidence from Mr Brown that the grass was cut at least twice monthly by the Council and could not have needed any more cutting. Other witnesses, namely Mr Gillespie, Mrs Keiller and Mrs Shepherd had stated that they had never seen him cut the grass. It was not, however, disputed that Mr Kay had cut the grass about once every four to five weeks since about 2015. The fact that Mr Kay’s affidavit indicated that “We constantly told them (the council) to desist” from cutting the grass implied that the council workers were indeed constantly cutting the grass and Mrs Kay’s affidavit was to the same effect. It was not plausible that Mr Kay would have duplicated the work of the council. The indication from Mrs Kay that the reseeding had been on a weekly basis where there was damage to the turf caused by the passage of vehicles was not credible. There had been no attempt until recently to enclose the disputed area and, in the case of the interested parties, who were keen gardeners, to cultivate the ground.

58. Counsel referred to the servitude over the blue area which was purportedly granted by the interested parties to the applicants’ predecessors in title in 2011. A collateral issue to the present application was whether in 2011 the interested parties had title to do so. If not, any continued presence on the register of a servitude over the ground would amount to an inaccuracy, because it cannot be accurate to have a servitude right binding the subjects which had never been in the ownership of the purported granter.

59. Counsel did not seek to provide analysis in landownership terms as to the recent disposition by Mr Christie in favour of the applicants. His position was that its existence provided the applicants with interest to pursue the present application. In the event of the s82 application being successful, the Christie disposition would support an application for registration of the disputed area in the name of the applicants.

Submissions for interested parties

60. It was submitted that the onus was upon the applicants to show that the land register is inaccurate. Having said that, Mr Hunter did not propose to go into the applicants’ historical evidence in detail.

61. Turing to the interested parties’ title, it was clear that Fife Council did not, as was previously thought, own the disputed area. The interested parties and their predecessors had owned the disputed area in terms of the description in the 1919 disposition. The reference to the servitude in the 1992 disposition should be ignored, since the rights of access were only granted insofar as they could “competently” be done. The rights could not be granted because the grantors of the 1992 disposition already owned the area. They could not convey an area and grant a servitude over it at the same time. Under reference to the Board of Management of Aberdeen College v Youngson the doctrine of confusio applied.

62. The high road referred to in the 1919 disposition was now Durie Place. That was a clear boundary. In any event, the title was habile and could be fortified by prescription. Turning to the nature of the requisite possession, the principles were set out by the Lord Justice Clerk in Hamilton v McIntosh Donald Ltd. If there was a flaw in the 1919 deed, the well-known opinion of Lord Braxfield, would apply: “It is the great purpose of prescription to support bad titles. Good titles stand in no need of prescription.”

63. Reference was made to the Lord Justice Clerk’s endorsement of Aitken’s Trustees v The Caledonian Railway Co. where Lord Moncrieff stated at p470: “In judging the sufficiency of the possession, regard will be had to the nature of the subject and the uses to which it can be put”. Reference was also made to the Lord Justice Clerk at p322 that possession must be “unequivocally referable to an assertion of ownership of the land.”

64. The interested parties founded upon the grass cutting, the maintenance of the disputed area and the parking of vehicles on the disputed area. The fact that the interested parties intended to possess the disputed area as owners can be taken from the letter from their solicitor of 13 September 1995. Reference was made to the various witnesses including the interested parties indicating that Mr Kay would cut the grass, and that this had occurred since 1992. There was no dispute that the interested parties had parked vehicles on the disputed area continuously. Reference was made to the Lord Justice Clerk (p323) stating that “The critical question must always be whether the alleged possession was spasmodic or sporadic or whether it was truly continuous”. Here the parking was truly continuous apart, perhaps, from when the council would cut the grass. The grass cutting and maintenance and parking would cover the entire area in dispute. There had been no adverse possession.

65. The interested parties abandoned a submission that they were proprietors in possession within the meaning of section 9 of the Land Registration (Scotland) Act 1979. Their title had of course been registered after the coming into force of the provisions of the 2012 Act.

Discussion by Tribunal

Bounding title or habile title

66. The 1992 disposition in favour of the interested parties takes its description of the Gateyard House subjects from the 1919 disposition. Critically this describes the subjects as “bounded by the high road on the east and south …”. The expression “bounded by a road” is a familiar example of a bounding title; i.e. one in which land cannot be acquired beyond the boundaries even by exclusive possession for the prescriptive period: Halliday 33.09-11.

67. A question may arise, if the boundary of the road itself is in some doubt, whether title can nevertheless be established by prescriptive possession. In Houston v Barr the original feu charter had described the lands “bounded by Quarrelton Street on the east part...” Since the date of the relevant feu charter, the line of the street had been altered. The defenders therefore argued that there was a habile title for the disputed area as the feu charter (and a subsequent disposition) could be interpreted to mean the present line of Quarrelton Street. The Second Division held, in terms of the opinion of Lord Dundas at p142-

“On this branch of the argument the pursuer’s counsel founded strongly on the case of Reid & Co v MacColl (1879) 7 R 84 and especially upon the opinion of the Lord Justice Clerk (Moncrieff) who said (p90) that ‘a wall, a fence, a road, a building, even march stones may have long been removed or destroyed, but as long as it is possible to prove their site, they will be the limit of the property of which they have been described as the boundaries.’ The question thus raised is, to my mind, difficult; and Reid’s case was a narrowly decided one, the judgment of the Lord Ordinary (Adam) being reversed by this Division, where one of the three judges present (Lord Gifford) doubted, though he did not dissent from, the decision of the Court. If the judgment is a sound one (and I am not aware that it has ever been disapproved), it seems to answer completely this branch of the defender’s argument (for prescriptive possession).”

68. It seems fair to say that although the above legal point was only narrowly decided, it would still follow that evidence of prescriptive possession going beyond the old boundary of the road is not relevant. Accordingly we require to ascertain, as a matter of interpretation and extrinsic evidence, what was the site of “the high road” in the 1919 disposition, and whether the road or any part of it were intended to be carried by the Gateyard House title. But as we shall discuss below, the evidence does not suggest a material change in the site of the “road” since 1919.

Medium filum

69. There is no dispute that “the high road” in 1919 was a public road and is now known as Durie Place. As conceded by Mr Upton there is authority to the effect that where a title description refers to “bounded by a public road” there is a presumption that the title extends to the medium filum of the public road. The interested parties did not appear to seek to support this proposition in the present case, and indeed they had not sought to register a title extending to the centre line of Durie Place. We think that on a close examination of the authorities, the interested parties were correct in not doing so. The presumption was discussed in Magistrates of Ayr v Dobbie which was in turn discussed by the Second Division in Houstoun v Barr by Lord Dundas at p140:-

“Its rubric (Mags of Ayr) bears that ‘when a proprietor dispones two pieces of ground, one on each side of a road and opposite each other, and describes each as bounded by the road, the presumption is that he dispones the solum of the road, and that the boundary of each of the pieces of ground is the medium filum of the road. This presumption, however, as appears from the opinions of the learned judges, especially that of Lord Moncrieff, arises only ‘in the absence of special circumstances or indications of contrary intention’.”

70. Professor Halliday at 33-11 under reference to Houstoun and Mags of Ayr states:-

“The general rule is that bounded ‘by’ a road excludes the whole solum of the road, but where a proprietor conveys two pieces of ground, one on either side of a public road, and describes each as bounded by the road, there is a presumption in the absence of special circumstances or indications of contrary intention that the boundary is the medium filum of the road.”

71. We recognise that there were other texts cited to us whereby the presumption is stated in somewhat broader terms. However it respectfully seems to us that the learned Professor’s analysis comes closest to the passage of Lord Dundas which we have quoted above.

72. In the present case there is no suggestion that properties on either side of Durie Place (or previously the High Road or School Wynd) had been feued out by a single proprietor providing that each property was bounded by the High Road. It is notable that the original sasine title for the adjacent Old School House (as can be seen from the 1895 copy deed plan), which extended along a larger part of the main road than the Gateyard House title, stopped at the edge of the footpath of the road, and not the medium filum of the carriageway. So the basic premise for the presumption to apply is not apparent.

73. Moreover there are indications of a contrary intention. If the 1919 disposition of Gateyard House had intended to include the disputed triangle, it would have been more accurate for the deed to say “bounded on the southeast.” This is because there is a substantial southeast line of the triangle which would be needed to enclose the area. The reference to “south” is more consistent with a boundary along the top line of the triangle representing the edge of the curtilage of the road, and the reference to “east” is consistent with the fact that the main road continued north at that time running to the east of the gable of the house.

74. Then there is the servitude right contained in the dispositive clause of the 1992 disposition. The right is mentioned after the description by reference to the 1919 description. We agree with both parties that a purported grant of servitude by the 1992 sellers would be of doubtful validity, albeit that parties gave different reasons why this should be so. It can perhaps be explained as an elucidation or representation that the subjects already had a prescriptive right of access along the area in question, which might otherwise have been conveyed as a pertinent. However, the description of “access...along the front or south of the subjects...” is only consistent with the south boundary being along the immediate south of the house itself where the access in fact runs, and thus not including the disputed area. We require to be cautious as to the applicants’ submission that we should interpret title deeds on the basis of modern principles of contractual interpretation, not least since conveyancing deeds are intended to run with the land and outlive the memories of those involved in the factual matrix at the time of their execution. However, the concept that several dispositive clauses should be interpreted as a whole finds some support in the opinions of the Lord President and Lord Russell in Nisbett v Hogg, towhich we drew parties’ attention in the discussion. On this basis the terms of the purported servitude right can be seen as part of the deed’s overall description of the subjects. We do not think we can completely ignore it as the interested parties invited us to do. At the very least it is a description contrary to an intention for the boundary to be the centre line of the public road. So in conclusion we do not think we can interpret the titles by applying a presumption that the boundary runs to the medium filum of Durie Place.

“Bounded by the High Road …”

75. It follows that the general rule applies that the solum of the road is excluded by the 1919 disposition. We consider that the passage of Lord Adam in Louttit’s Trustees at p798, albeit dealing with a private road, is apt:-

“The description in the title seems to me itself to exclude the roadway from the subjects disposed, because if in a disposition the subjects are described as being bounded a roadway it seems to me that every part of the roadway is excluded from the grant.”

76. This is consistent with the approach of the court in Houston v Barr which, in the absence of a plan, inferred that “streets” were delineated by their “external lines”(p140). This leads to the question whether the disputed area falls to be considered as part of the High Road in 1919.

Extrinsic evidence of extent of High Road

77. The 1895 disposition copy plan appears to show a verge or way of some sort beside the carriageway leading to the “common ground” and thence to the footpath in front of Gateyard House. The expression “common” suggests a place of public resort, and it would be natural to expect the method of resort to be by foot, including by foot via the verge and footpath. The brace or tie symbol between the carriageway and the triangle in the 1895 ordnance survey plan would also seem to indicate some sort of functionality between the carriageway and the triangle, as would have been observed by the cartographer. The pecked line between the carriageway and both the triangle and an apparent footway to the south in the 1960 ordnance survey plan also indicates a pedestrian usage of the triangle and a functionality with the road. This extrinsic evidence, which was uncontradicted, suggests that at the time of the 1919 disposition and thereafter, the disputed area was associated with the road and not with Gateyard Cottage as it was then known. The historical evidence suggests that the disputed area was part of a way over which there was a public right of passage.

78. Turning to more contemporary evidence the plan by Fife Council dated 13 October 2011 indicates that most of the disputed area was “land maintained by Fife Council”. The evidence indicated that the Council cut the grassy area regularly until 2015. This suggests that the council regarded the grassy area as part of the public road which it was obliged to maintain in terms of section 1 of the Roads (Scotland) Act 1984 (“the 1984 Act.”)

79. In this connection we note that the statutory definition of a public road means, in terms of s151 of the 1984 Act, “any way over which there is a public right of passage by whatever means and includes the road’s verge.” We have quoted above the passage of the Inner House in Hamilton v Nairn endorsing the opinion that in its natural meaning and construction the word “road” or “highway” means and includes the whole area dedicated to public passage from “fence to fence” or “building line to building line” including the area, if any, occupied by footways of any kind. In context, the passage suggests that this has been the definition for a very long time, and that the meaning of either word is capable of broad application.

80. There has been evidence of the disputed area having been used by children for playing. There is also the evidence of Mrs Shepherd about her walking across the grassy triangle to and from the Sandydykes footpath for many years without challenge, at least until the recent fence construction and hedge planting. The suggestion seemed to be, albeit it was not put to her, that as the grassy area contains something of an awkward bank adjacent to Durie Place it would have been difficult to cross by foot. Our impression however is that on the contrary, in walking along the footpath in order to travel southwards along Durie Place there would have been a desire line to walk across the grass sloping downwards adjacent to the School House, and thence to cross the road southwards. The grass did not seem unduly steep to cross, and the gradient was gentle at the desire line adjacent to the School House wall. Mrs Shepherd appeared to us to be an open witness and we accepted her evidence as credible. Her evidence implies that there is still a public right of passage over the disputed area, thus indicating it is part of the verge of the public road.

81. There is also the evidence of the plan showing the existence of electricity cables under the disputed area feeding various properties. In our experience it is common for public roads including their verges to be so used by utilities. This is because utility operators can rely upon various utilities and road works legislation to place cables etc. under a public road without the need to negotiate servitudes or wayleaves with the heritable landowner. So this lends further support to the view that the disputed area is part of the verge of the public road. In this connection it is worth pointing out that if any part of a “road” were to cease to be a “road” other than by means of a formal stopping up order (cf s68(4) of 1984 Act); e.g. because a private landowner were able to terminate a public right of passage over the land (cf para 2(1) schedule 4 to Electricity Act 1989) there would at best be uncertainty as to the rights for the cables etc. to remain there.

82. In all these circumstances we are satisfied that the disputed area has formed part of the wider public road before 1919 and, should it be necessary for our decision, thereafter to the present day. The disputed area is part of the curtilage of a roadway. It lies between “building line to building line.” It is part of a way where there has been, and remains, a public right of passage. In terms of the maps of Fife Council, at least until 2011, and probably until about 2014, almost all of it was viewed as part of the adopted public road in the eyes of the council.

83. Although not commented upon by the interested parties, we note the May 2014 plan drawn by Fife Council Estates Department indicated that only some 2m of verge was “adopted carriageway.” This suggests that the remainder of the disputed area hatched in red was apparently excluded from the “adopted” area, and suggests a change in position by the council from the 13 October 2011 plan. It is unfortunate that the council have not commented upon these plans, and the precise extent of how they viewed their responsibilities under the 1984 Act from time to time. However, if the 2014 plan can be taken as indicating that the council have no longer “adopted” the remainder of the disputed area since about 2014, we do not think that the extent of local authority adoption can be conclusive as to what is part of the public “road.” Local authority adoption is only one of a number of factors indicating the extent of any “verge”: e.g. Hamilton v Nairn para [27]. This point was conceded by senior counsel in Elmford Ltd v Glasgow City Council para 15. What is important for the statutory definition, and in our opinion also for the interpretation of the title description, is whether the ground can be said to be part of a public roadway, i.e. a way over which there is a public right of passage. As we have indicated, we consider that the evidence shows that there has been and appears to remain such a right over the disputed area.

84. In these circumstances we would conclude that the relevant sasine titles excluded the solum of the “road” from the interested parties’ title, and that the “road” included and continues to include the disputed area. The underlying sasine titles for Gateyard House are not therefore habile to include the disputed area.

Prescriptive possession

85. Although it is not now necessary for us to determine the issue of prescriptive possession in the light of our conclusion as to the interested parties’ title, we would provide the following analysis should we be incorrect in the above.

86. We understood the interested parties to accept that the onus of proof rested upon them to establish prescriptive possession, in the light of the Lord Justice Clerk’s opinion in Hamilton v McIntosh Donald Ltd. It would appear that no evidence was offered by the interested parties to the Keeper in respect of prescriptive possession at the time of registration. Thus the entry in the land register did not involve any analysis by the Keeper of such evidence, so the interested parties’ concession is consistent with our being faced with a somewhat open position on the matter.

87. We would also observe that a number of the authorities referred to by the applicants relate to possession in the context of “proprietor in possession” in terms of section 9 of the Land Registration (Scotland) Act 1979 (“the 1979 Act”). We have to be cautious in adopting these authorities for the purposes of ascertaining prescriptive possession in the context of the 1973 Act, not least because the latter legislation refers to possession “openly, peaceably and without judicial interruption.” These words were absent in section 9 of the 1979 Act. We would reserve our view on whether the section 9 authorities are of assistance in context such as the present, since we feel able to deal with the issues on the basis of the familiar authorities on prescriptive possession.

88. The peculiarity about the present case is that we have found the subjects to be part of the wider curtilage or verge of a public road, albeit a relatively wide and unusually shaped verge. This means that parties other than the heritable owner of the verge have rights to it. The roads authority has duties of maintenance (s1 of the 1984 Act) and wide powers to remove obstructions (ss 59 and 87) and plantings (s 92). The rights of the underlying landowner are subject to these duties and powers.

89. Another feature is that a landowner fronting a public road has a common law right to connect his property to the public road, subject to the obtaining of any necessary statutory consents. Hamilton v Nairn is an example of an adjoining landowner being entitled to take access across the verge of a public road, where the solum of the verge was in the ownership of a hostile third party. In addition, there are the rights of the public to exercise their right of passage along the line of a road within its boundaries: Hamilton v Nairn para [26]. We have already mentioned that there are also certain statutory rights of utility operators to maintain cables etc under the public “road.”

90. It is no doubt possible that the owner of the solum of the verge can nevertheless “possess” the verge in various ways, but any acts of possession will be subject to the rights of others as discussed above. It also means there may be particular issues in applying one of the familiar tests for prescriptive possession, namely the requirement for possession to be unequivocally referable to the assertion of a right of ownership in the land.

91. So for example, we accept the evidence that the interested parties have parked a car on the disputed area for many years. However, of itself such an act would not appear to the world to be an assertion of ownership, since there is an undoubted practice in general terms of the motoring public to park upon the verge of a public road, subject to any restriction in place by the roads authority. Mr Keiller had no difficulty with the interested parties’ parking there because he believed the land was, as he put it, common ground belonging to the council. In layman’s terms he believed the land was publicly controlled space, which is not an inaccurate view of the matter. This indicates that the act of parking would not have appeared to be an unequivocal assertion of ownership.

92. For this reason we do not think the parking since 1992 amounted to prescriptive possession. In these circumstances we do not think it is necessary to examine the applicants’ further submission concerning a possible servitude of parking in favour of the interested parties.

93. The evidence from various witnesses as to grass cutting by Mr Kay, particularly from 1992 onwards and up to a period between 2011 and 2015, is contradictory and not easy to reconcile. In an entrenched neighbour dispute of this nature, we require to treat the evidence of the parties themselves with a degree of care where it differs significantly from that of apparently neutral witnesses. The difference between the position of the interested parties, which referred to regular cutting of the grass since 1992, and the evidence of Mr Brown, the council’s general maintenance gardener indicating grass was cut by a team every 10 or 14 days in the growing season, is stark. We accept it is possible that Mr Brown’s evidence could be overstated, although he was not really challenged on the point. However, we think it inherently likely that the council’s grass cutting operation was still carried out on a regular basis. On balance we feel that if Mr Kay was regularly cutting the grass at least as frequently as the council, then this would have been observed by Mrs Keiller in the period between 1996 and 2011. She lived adjacent to the disputed area and would have crossed it to take access to her property on a regular basis. Her evidence was that she had never seen Mr Kay cutting the grass, and we accept that she was both a credible and reliable witness. Most of the other witnesses supporting one or either side were involved, as it were, as passers-by who were not necessarily in a position to gauge just how regularly Mr Kay was cutting the grass himself. Other witnesses did not appear to have a good recollection of dates.

94. Moreover we consider that the interested parties were likely to have been emboldened in their assertion of ownership by the apparent request in 2011 for the grant of a deed of servitude and by the concession by Fife Council in 2015 that the council did not own the ground. So although we accept it is probable that Mr Kay did cut the grass prior to 2011 and 2015, we are inclined to think his activities were probably less of a regular and more of a sporadic nature. There was no need for him to cut the grass regularly while the council also had a regular rota. Whatever interaction there was between the interested parties and council staff in 1992 or 1993, the council continued to cut the grass. We would regard the placing of a kerb stone or stones at the access to be a minor act in the overall scheme of things, and could have been seen as little more than an attempt by Mr Kay to maintain a tidy setting for his house against the inevitable interaction of vehicles with a verge. We do not think the parking, the grass cutting and any other maintenance and the kerb stones prior to 2011 amounted to prescriptive possession.

95. However, we consider that a different complexion can start to be put on the interested parties’ activities once the sign was erected in 2011. The words “access strictly for private cars only” is referable to the deed of servitude and implies an assertion of ownership over the servitude ground, which is part of the disputed area. The access area appears somewhat different to the grassy area since the access area is covered with hardstanding. An interesting question therefore emerges as to whether the rule tantum prescriptum quantum possessum applies – “the amount possessed is the amount prescribed.” As the Lord Justice Clerk mentions in Hamilton at p323, a more liberal effect has been given to partial acts of possession as evidencing proprietary possession of the whole, in cases where the subject of controversy has been of itself a distinct and separate tenement. In this case the disputed area has never been a distinct legal tenement, but just an adjunct of the road. So we would think the rule applies such that while prescriptive possession of the access area may have commenced in 2011, this would not necessarily be the case for the grassy area.

96. As far as the grassy area is concerned, we would have considered the “successful” remonstration leading to the cessation of the council workmen cutting the grass in 2015 to be an overt act unequivocally referable to ownership. Up until then, as we have said above, the grass cutting by Mr Kay would not have needed to be regular since it was also being regularly cut by the council. There was some evidence that for a short period the grassy area had had hardstanding placed upon it, but the evidence did not enable us to draw a conclusion as to who was ultimately responsible for doing so. But on any view the 10 year prescriptive period has not expired so as to fortify a habile title, had there been one.

97. Finally we drew to parties’ attention sections 43-45 of the 2012 Act which make provision for provisional entries in the land register for prescriptive claimants. Both parties adopted the position that the provisions were inapplicable, so we say nothing more about them here.

Conclusion and decision

98. We therefore determine that the disputed area does not form part of the interested parties’ title and that the land register is accordingly inaccurate. In order to rectify the land register it is necessary to remove the disputed area from the relevant title sheet. It follows from our above reasoning that the interested parties did not have title to grant the blue access servitude purporting to restrict the access to the Old School House. It follows that this express servitude should be removed from the respective titles.

99. In these circumstances we would request the Keeper to prepare draft amended title sheets and plans for review by the Tribunal. For the avoidance of doubt the above determination is intended to be a decision within the meaning of section 11 of the Tribunals and Inquiries Act 1992 and the Lands Tribunal for Scotland Rules 2003.

100. We reserve all questions of expenses.

Appendix

Plan annexed to s82 application


Certified a true copy of the statement of reasons for the decision of the Lands Tribunal for Scotland intimated to parties on 31 October 2018

Neil M Tainsh – Clerk to the Tribunal