Lands Tribunal for Scotland

OPINION

Robert and Denise Mellish (Applicants)
v
Michael William Boyd and Tanja Waaser (Interested Parties)
and
Keeper of the Registers of Scotland (The Keeper)

Introduction

[1] This case concerns a question relating to the accuracy of the Land Register under s.82 of the Land Registration (Scotland) Act 2012. The applicants’ house and garden adjoin a field. There are potentially two boundaries. One is the line of a low dyke which runs towards the rear wall of the house which after crossing a small gap effectively continues along the house wall and side of a shed. The other is the line of a fence, now partly removed, running roughly parallel with the dyke and house wall such as to create a gap of a few feet or less. The applicants own the house and their title has undergone voluntary registration whereby the Keeper has accepted the boundary as the dyke and house wall.

[2] The interested parties own the adjoining field which they acquired shortly prior to the registration of the applicants’ property. Their title is also registered. The Keeper has shown the relevant boundary of the interested parties’ field to be the line of the said fence. Thus there is a narrow strip of land between the dyke/ house wall and the field (“the disputed area” or “strip”) which has been registered in favour of neither party. The applicants contend that this strip of land should be registered within their title on the basis of prescriptive possession under a pre-existing sasine title. The interested parties oppose this.

Procedure

[3] We held a hearing on 10, 11 and 12 November 2020. There had been a procedural hearing on 3 December 2019. At the evidential hearing the applicants were represented by Mr Giles Reid, Advocate. The interested parties were represented by Mr David Logan, Advocate. The Keeper did not appear. We held unaccompanied site visits on 4 November and 2 December 2020.

[4] At the evidential hearing, the applicants gave evidence themselves and led the evidence of Maria Rizza and Gill Cosgrove. The interested parties gave evidence themselves and led the evidence of Donald Thomson, Emma Thomson and Neil Mitchell. There was a joint minute of admissions.

Legislation

Prescription and Limitation (Scotland) Act 1973, ss 1, 5, 15 (“the 1973 Act”).
Land Registration etc. (Scotland) Act 2012, ss 80, 82 (“the 2012 Act”).

Cases

Scott v Bruce-Stewart (1779) 3 Ross’s LC (Land Rights) 334
Wilson v Laing (1844) 7 D 113
Agnew v Lord Advocate (1873) 11 M 309
Auld v Hay (1880) 7 R 663
Lord Advocate v Wemyss (1899) 2 F (HL) 1
Hetherington v Galt (1905) 7 F 706
Houstoun v Barr 1911 SC 134
Suttie v Baird 1992 SLT 133
Hamilton v McIntosh Donald 1994 SC 304
Campbell-Gray v Keeper of the Registers 2015 SLT (Lands Tr) 147
Wyllie v Wittmann (1 June 2020; LTS/LR/2018/09)
Leafrealm Land Limited v City of Edinburgh Council [2020] CSOH 34

Textbook

Halliday, Conveyancing (2nd ed)

Applicants’ title

[5] The applicants are proprietors of the dwelling-house Riomhach, Kirkinch, Blairgowrie (“the subjects.”). They acquired the property on a sasine title with entry on 6 October 1995. Their title subsequently underwent voluntary first registration on 11 October 2017 as ANG77252 under the 2012 Act. The register plan is Appendix 1 to this opinion. The relevant sasine disposition provides a description by reference to a disposition by Mervin Eady Haliburton Burnett with consent in favour of Michael Grant Walker recorded GRS (Angus) 19 June 1969 (“the 1969 disposition”).

[6] It is the southeast boundary of the subjects which is in issue. The 1969 disposition refers to two areas namely-

“(First) ALL and WHOLE that piece of ground extending to (193) decimal or one-thousandth parts of an acre or thereby lying in the parish of Eassie and Nevay and county of Angus (formerly Forfar) and bounded as follows:- On or towards the southeast by subjects belonging to J McDiarmid along which it extends 158 feet 10 inches or thereby; on or towards the northeast by the subjects (Second) hereby disponed along which it extends 46 feet 10 inches or thereby; on or towards the northwest by a farm road leading to the Newtyle/Meigle public road along which it extends 164 feet 8 inches or thereby; and or towards the southwest by a wooden fence separating the subjects hereby disponed from the verge adjoining the said public road along which it extends 47 feet 9 inches or thereby; all as the said piece of ground hereby disponed is delineated and coloured pink on the plan annexed and subscribed by me as relative hereto; which plan while believed to be correct is demonstrative only and not guaranteed; and (Second) ALL and WHOLE that piece of ground extending to (17) decimal or one-thousandth parts of an acre or thereby lying in the said parish and county and bounded as follows:- On or towards the southwest by the subjects (First) hereinbefore disponed along which it extends 46 feet 10 inches or thereby; on or towards the northwest by the said farm road along which it extends 15 feet 11 inches or thereby; and on or towards the east and southeast by land belonging to the said J McDiarmid along which it extends following the curve 59 feet 2 inches or thereby; all as said piece of ground (Second) hereby disponed is delineated in green and hatched in black on the said plan; which pieces of ground (First) and (Second) hereinbefore disponed form part and portion of ALL and WHOLE the farm and lands of Kirkton of Nevay and lands of Gateside of Nevay in the said parish of Eassie and Nevey and county of Forfar …”.

[7] Accordingly the deed wording refers to the subjects being bounded on the southeast “by subjects belonging to J McDairmid …”

[8] Only a monochrome copy of the 1969 deed plan has been obtained and is of fairly poor quality. It is on a 1:250 scale. It shows various features including along the southeast boundary a stone wall, a house and two sheds. It states:

“Area coloured pink 0.193 acres or thereby equals 0 acres 0 roods 30 poles” (i.e. the First area)

and

“Area cross-hatched equals 0.017 acres or thereby equals 0 acres 0 roods 3 poles” (i.e. the Second area).

[9] The boundary for the pink (First) area is denoted by a thick line. To the southeast it appears to demark a “stone wall 1’6” wide” running to a shed, then it demarks the rear wall of the house, then runs across a small gap and then alongside another shed. The southeast boundary is measured in three separate measurements on the plan, namely 12” 6’; 42” 5’ and 103” 11’; which totals 158” 10’ as the latter is stated in gremio (48.41m). At the southeast corner, area (Second) is shown as bounded by the centre of a rounded hedge. A post and wire fence is delineated running roughly parallel to the stone wall and house for the entire length of the “pink” area, although no distance is in fact specified as to the gap from the wall (which gap appears to widen slightly as it travels northeast). The plan shows adjoining features namely the public road to the southwest, the farm road to the northwest and marks “Land Belonging to J McDairmid Esq.” to the southeast and east.

[10] The house shown in the 1969 disposition plan was a traditional stone cottage. This has been demolished and replaced with the current larger dwellinghouse. The sheds have also been demolished and replaced with another shed and car port. We understood the new house to have been erected during the 1980s by a previous owner. The dyke and garden behind remain.

Interested parties’ title

[11] The interested parties acquired the field on 21 October 2016. The transaction involved a first registration. The title is registered under ANG71150. The description includes the words “ground … edged red on the cadastral map being 1.65 hectares in measurement on the Ordnance map …” The title plan (Appendix 2) shows the relevant northwest boundary extending along the fence line rather than the Riomhach walls. The fence boundary continues running northwest as it adjoins another property called The Well.

[12] The interested parties’ registered title derives from a disposition by Newtyle Bulb and Farming Co Ltd in their favour dated 20 October 2016 (“the 2016 disposition.”) The deed describes the land as

“ALL and WHOLE that area or piece of ground … all as shown delineated in red on the plan annexed and executed as relative hereto … which disponed property comprises all and whole that irregularly shaped area of ground extending to 4 acres and (271) decimal or one-thousandth parts of an acre or thereby … being the subjects (First) more particularly described in an disponed by disposition by disposition by John McDiarmid in our favour … recorded in the Division of the General Register of Sasines applicable to the county of Perth on 11 July … 1991 …” (“the 1991 disposition.”)

[13] The plan annexed to the 2016 disposition also shows the boundary with Riomhach running along the fence line, rather than the dyke/ wall line, which fence line continues as the boundary with The Well. In other words the deed plan was transposed to the register plan without material change.

[14] The 1991 disposition referred to comprised several parcels of land including (First) the 4.271 acre field. The deed describes the boundary:

“on or towards the northwest partly by a private access road also shown coloured blue on said plan and partly by other subjects now or formerly belonging to Charles McCuckin and Mrs Ann McCuckin and which said area hereby disponed is shown delineated and coloured red on the plan annexed and signed as relative hereto; …”.

Mr and Mrs McCuckin were previous owners of Riomhach. The plan shows the relevant field and adjoining Riomhach property in rough outline. The 1991 disposition goes on “all or more particularly described in, disponed by and shown delineated and coloured pink and appropriately numbered on the plan annexed and signed as relative to disposition by James Auchterlonie with consent therein mentioned in favour of John Taylor … recorded in the divisions of the General Register of Sasines for the counties of Forfar (now Angus) and Perth on 14 April 1921” (“the 1921 disposition”).

[15] The first interested party has carried out title research into the 1921 disposition. The deed refers amongst others to a “field number eight” bounded:

“… on the north or northwest partly by the east or outside face of a dyke dividing the subjects hereby disponed from other subjects vested in me the said James Auchterlonie … occupied by George Anderson, partly by the outside face of the back wall of a dwellinghouse also vested in me the said James Auchterlonie … occupied by the said George Anderson, partly by a line leading eastwards in continuation of the outside face of said wall until it reaches the south end of the centre of a hedge forming the east or north east boundary of the subjects occupied by the said George Anderson …”.

His research indicated that a family of Andersons had once lived at the property now belonging to the applicants. Thus it could be inferred that the historical field title extended to the dyke and house wall.

Background facts and circumstances

[16] The applicants applied for voluntary registration on 10 October 2017. The application had been made with the assistance of the Registers of Scotland Plan Assistance Service. The latter had acknowledged that the boundaries of the Riomhach property in terms of the 1969 disposition did “not particularly agree with the defined features of the OS map”. The Plan Assistance Service nevertheless provided the applicants with a 1:1250 scale plan dated 6 October 2017 which amongst other things “straightened” the somewhat rounded northeast boundary with the adjoining property The Well. It would also appear to have realigned somewhat the northwest boundary along the farm road. These matters did not produce controversy. However the plan at this stage also included the disputed area within the proposed boundary, which was to become a source of contention.

[17] It is worth noting at this point that the two areas conveyed by the 1969 disposition (0.193a and 0.017a) totalling 0.210a equate to approximately 849 sqm. The agents estimated that the area comprised in the proposed register plan (i.e. including the strip) extended to 900 sqm. The agents stated that the verbal description in the 1969 disposition was habile to include everything shown by the proposed plan which was a true and accurate representation of the extent of the applicants’ occupation. The agents also pointed out that the subjects to the south (i.e. the field) were currently undergoing land registration under ANG71150 and the Register’s report disclosed no conflict.

[18] However, despite the initial preparation of the plan favouring the applicants, the Keeper subsequently refused to register the applicants’ title so as to include the disputed area. In an undated letter (we think sent 30 April 2018) the Keeper advised that she had received representations from a third party – we assume the interested parties – and indicated that the registered extent of the title had been restricted to the plans registration officer’s interpretation of the extent disponed in the 1969 disposition. She further stated:-

“This extent has been mapped on the basis that the southeast boundary, Street View clearly shows a dilapidated stone wall with an equally dilapidated post and wire fence lying parallel to the wall approximately 3’ to the southeast.

This agrees with the deed plan where the stone wall is annotated and delineated as the southeast boundary. Helpfully the post and wire fence is also shown on the deed plan and is not delineated as the boundary. It is not considered too much of a presumption to align the above features with the double-feature shown by the Ordnance Map.

Both features at the southeast boundary shown by the Ordinance Map appear to lie further southeast than the dimensions stated with the stone wall obviously being closer to the stated 47’9” with the difference being only 1’6”, negligible at this scale.”

[19] To explain this letter, the reference to “Street View” was presumably a reference to two Google roadside images produced in this case, dated September 2008 and November 2009. These show a dilapidated wall and (in the later image) a post and wire fence at the southeast boundary, with the ground in an overgrown condition. The letter does not disclose the date of the Ordnance Map survey used by the Keeper, and this was not explored in evidence, but it can be inferred that the fence and wall both appeared on the Ordnance Map and that these features are now shown by the respective registered plans. The reference to the stated “47”9’ is a reference to the subjects’ southwest boundary alongside the public road as shown by the 1969 plan. This dimension might assist in determining the “true” width of the site, and whether it could include the width of the gap between wall and fence. The reference to the 1’6” dimension is a reference to the stated width of the dyke in the context of the overall width of the subjects.

[20] The Keeper has since estimated that the area covered by the applicants’ registered title (i.e. not including the disputed area) is 883 sqm. The increase from the 1969 area (849sqm) can probably be explained by the Keeper’s uncontroversial “squaring off” of certain other boundaries discussed above, although we do not think this necessarily implies that the 1969 areas were accurately stated.

[21] The interested parties having acquired the field in November 2016 proceeded to remove the dilapidated part of the post and wire fence. This fence was described in the proceedings as “fence 2”. The dilapidated section extended from a point near the field entrance, adjacent to a bridge over a culvert beside the public road, and along the length of the dyke to a point roughly at the gap in the dyke where the house wall begins. The interested parties thus removed the fence section adjacent to the dyke and house garden. The removal appears to have been effected in about February 2017. They did not remove the remainder of fence 2 which appears to have been in reasonable condition. They replaced the part of fence 2 with “fence 1”, which was another barbed wire fence, but this time ran hard against the dyke, and at the point where it joined the remainder of fence 2 a “kink” into the field was produced.

[22] Estimates varied as to the gap between the now removed fence 2 and the low dyke. The interested parties estimated a gap between about 1 hand and 1 foot; the applicants estimated a distance of about 1 metre. Judging as best we can from the register plans (i.e. based upon the O/S map) and various photographs in process, we think the distance varied on the ground between about one foot and three feet. Fortunately there was no dispute as to the gap between the remaining fence 2 and the house and shed, being a gap of just over 1 metre.

[23] At the point of removal of fence 2 the parties fell out. We do not attempt an exact timeline. Both parties armed themselves with opinions from professors of conveyancing. The applicants removed fence 1 themselves. There was a sheriff court case brought by the applicants in March 2018 against the interested parties for encroachment. This appears to have been based upon the initial register plan issued by the Keeper, which was to be superseded. The action was dismissed. The interested parties proceeded to erect a large timber board fence (“fence 4”) about 6 feet high all along the boundary. This had the effect of obscuring views to and from Riomhach and particularly the garden. This led to or involved a planning dispute, the result being the removal of fence 4 at the behest of the planning authority.

[24] For completeness we should say there was also brief reference to a “fence 3.” This appears to have been an internal fence within the applicants’ property which from photographs can be seen to have been in existence in about 2012. It ran adjacent to the boundary we think along or near the edge of the patio between the house and garden.

Evidence of possession for applicants

[25] The applicants had bought Riomhach in 1995 and raised their family there. They stayed in New Zealand from 2010 until the summer of 2016. During that period the property had a series of tenants. The last of those tenants left (they had to be removed) in about Christmas 2016, after which the applicants returned to live in the property. They understood the house had been built in 1987.

[26] The applicants had always understood the boundary between their property and the field to be fence 2. Dealing with the “top” or north section of the disputed area, the northeast corner adjoins The Well. At this point there remains a snowberry hedge. This hedge is shown as a rounded shape in the 1969 deed plan. It runs along the disputed area adjacent to a now replaced shed. It lies just inside fence 2. There also remains a leylandii hedge which continues from the snowberry hedge alongside the house to a point adjacent to the patio area. It also lies just inside fence 2. Both hedges were there in 1995 and had been maintained by the applicants. Maintenance had been arranged and continued while the property was tenanted. Between the hedges and the house and shed wall there is a gravel path. Underneath the path there have always been drains, pipes and services including water and an electricity meter. The pathway had always existed and thus been used by the applicants for 25 years. The hedges were believed to be older than that, being estimated to be 40 years old.

[27] Turning to the lower south section of the disputed area, there is an existing quince bush from which fruit has been obtained. It lies adjacent to the patio. The bush had already been established when the applicants had bought the property in 1995 and could be seen in a photograph dated 1999/2000. The quince bush had been cut down presumably by the interested parties when they removed fence 2, but it had regrown in situ. The dyke was described as a small decorative stone dyke. Flowering plants had also been established, namely crocuses, irises, daffodils and snowdrops. Children had played in the area. Children would use the strip as a short cut by crossing the dyke (thereby avoiding birch trees alongside part of the strip tending to block it) to reach the public road via the small bridge, in order to play with other children at a neighbour’s house. This was also spoken to by Mrs Cosgrove of Neilston Farmhouse and by the second applicant’s sister Mrs Rizza.

[28] We understood the applicants to indicate that they had carried out some work to the dyke in the past. Until the interested parties appeared on the scene the strip had never been used by the owners or occupiers of the field. The previous owner of the field had been a Mr Burnett who was an arable farmer. The field did not have its own supply of water. Animals had not grazed there at least since 1995. A photograph dated January 2017 showed netting between the dyke and the fence at the public road end. This was understood to have been placed by a tenant of the applicants to keep chickens from running onto the road. The overgrown state of the southwest section shown by the google images of 2008 and 2009 showed that the area was more overgrown in September being the end of the summer and had not yet been tidied up by the applicants at that time. The November image showed significantly less growth. The area would be tidied up by the applicants at the end of the summer, albeit not by their tenants. It was not intended to be a show garden but was part of a family garden in the countryside. Mrs Cosgrove thought the fence had been dilapidated since the early 1990s.

[29] The second applicant had taken a 47’ 9” measurement along the southwest boundary which appeared generous to the possibility that the distance for the width of the site would have been sufficient to include both the dyke and adjacent fence.

Evidence of possession for interested parties

[30] The interested parties produced a plan of “Kirkinch Pendicles 1890” from public records showing their field having been occupied by a Mitchell and Taylor. This plan showed the relevant boundary to be consistent with a building wall, i.e. there was no double feature involving a separate fence. Mr Neil Mitchell who is a 72 year old retired joiner gave evidence that his father owned the field, having purchased it from a John Taylor. His father had owned the field between about 1959 and 1965. We understood he had been a farmer. His family had lived at the adjacent Neilston Farm. The boundary had been the dyke at that time and his father had put up a fence in front of the dyke to prevent livestock moving into the cottage garden when there was cattle in the field.

[31] The interested parties had rented the field from 2014 for equestrian purposes prior to purchasing it in 2016. The overgrown condition of the boundary area had not been dissimilar to that shown in the 2008-2009 Google images. The fencing had been extremely dilapidated when they removed it in 2017.

[32] The interested parties gave detailed comments on the dimensions of the 1969 deed plan. Based upon what we understood to be details of a topographical survey obtained for the site of the subjects, those details could be matched with the 1969 plan. The second interested party is a civil engineer and on the basis of a matching exercise using AutoCAD software it could be concluded that the 1969 disposition plan was accurate and that the rear wall of the house was located in the same position as the rear wall of the previous house. The interested parties felt it was thus established that their title ran along the dyke and somewhere between the hedge and the house. Should the disputed strip be included within the applicants’ title, the total area would be 951 sqm as opposed to the 900 sqm stated by the applicants.

[33] It was not accepted that the quince bush had lain in the disputed area. The 1999/2000 photograph appeared to show the quince bush on the house side of the dyke, as opposed to its “flopping over” into the patio as described by the second applicant. They were not aware of having cut down the quince bush.

[34] The applicants led evidence of dog walkers who had used the field. They had not seen signs of walking or clearance of the south section of the disputed area. Mrs Thomson had not seen evidence of flowers, only brambles, nettles, dockens and remains of the wire fence. There was also an old gate propped up next to the dyke. Mr Thomson had lived in the village since 1990 and thought the Google images of 2008 and 2009 were typical of the condition of that part of the property.

[35] The first interested party had measurements indicating that the 46’ 10” dimension on the northeast of the subjects (i.e. 14.3m equivalent) was 14.2m from fence 2 to the farm track to the north, which was consistent with the 1969 deed in his opinion. We understood he took the identifiable boundary feature as the edge of the applicants’ driveway. He concluded that fence 2 was the same fence shown in the 1969 deed running parallel with the dyke. If the new house had been set back that gap might now be 2 metres, which was obviously not the case.

Submissions for applicants

[36] The applicants sought a finding that their title contained an inaccuracy which should be rectified by including the disputed area as the full title area, as identified by the initial Registers of Scotland Plan Assistance Service plan of 6 October 2017.

[37] It was submitted that the interested parties’ title extended no further than the eastmost of the two black lines, namely the post and wire fence. This was clear from the land register entry for their property and the disposition in the latters’ favour. The interested parties had not sought rectification of their title so as to include the disputed area or any part of it. It was not appropriate to look behind the interested parties’ registered title.

[38] The applicants contended that they had title to the disputed area by means of prescriptive acquisition. The 1969 disposition met the requirements for a habile title. Under reference to Auld v Hay the question was whether the title was merely “capable of being so construed” in relation to the interpretation relied upon. Reference was also made to Suttie v Baird where the layout of the buildings on site was different to that shown in the plan, and the court had considered that “possession is, in this case, the best guide the position of the western boundary …”

[39] The 1969 disposition describes the applicants’ property as “bounded on or towards the southeast by subjects belonging to J McDiarmid …” Those McDairmid subjects now belong to the interested parties. This supported an interpretation which placed the boundary with the interested parties’ title and could only be achieved by the inclusion of the disputed area in the applicants’ title. The alternative interpretation was that a narrow strip had been left between the two properties. The improbability of such a result was a factor for the Inner House in Wilson v Laing where Lord McKenzie stated: “What motive could the heritor of Carslogie have for leaving a piece of land between the loan and the property of his neighbour?”

[40] The 1969 plan was described as merely demonstrative, it was not definitive. The various measurements contained by the verbal description including the acreage was qualified by the words “or thereby” and did not therefore constitute a precise boundary. The plan was difficult to construe because of a lack of fixed points and changes to the features. For example, the 1969 boundary with what was to become The Well had been shown in 1969 to be curved, but was now straight. The boundary alongside the farm road to the northwest appears to have changed shape compared with the current registered plan. The shape of the site had thus changed. The stated area in the 1969 deed is the equivalent of 849sqm, but the unrectified title area is 882sqm, so disparity exists. The 1969 plan could have been imprecise. If the rectified area amounted to 900sqm as previously suggested, a difference of 18sqm would not in itself account for the difference between the 1969 area and the registered area.

[41] The 1969 plan shows a rounded hedge at the east/ southeastern boundary. The hedge still exists albeit is at more of a right angle, and runs along the same line as the post and wire fence. It was submitted that the post and wire fence depicted on the 1969 plan was unlikely to be the same as is current as it is shown to be depicted some distance from the house and did not run on the same line as the hedge. The sheds shown on the northern part of the property have been removed and the house on the 1969 plan has been replaced by a modern differently shaped house. This inevitably produces uncertainty; it could not be assumed that the new house was on the same footprint; it can be seen that the 1969 hedge is closer to the house than the hedge at present.

[42] The boundaries on the 1969 plan are marked by a notably thick line. Conventionally the outside of the line would be the boundary. This would suggest that the boundary extended beyond the house wall and dyke somewhat; or at least the plan was ambiguous to such possibility. There were differences between the ditch at the southwest boundary of the property in the 1969 plan and the current topography. It was difficult, as acknowledged by Mr Boyd, to produce precise measurements given uncertain distances such as the width of the verge of the road. The southwestern boundary length stated as 47” 9’ on the plan tended to support the applicants’ position that the boundary was to the south of the dyke on the line of the post and wire fence. The deed plan could not be said definitively to exclude the disputed area and verbal description specifying a boundary with the interested parties’ property supported the applicants’ position. The 1969 deed was habile to found prescription.

[43] Turning to prescriptive possession of the strip, counsel referred to Hamilton v McIntosh Donald. He referred in particular to the first, fourth, fifth, sixth, seventh, eighth and ninth principles discussed by the Lord Justice Clerk.

[44] Counsel referred to the applicants’ evidence of possession and the 10 year prescriptive period from 1995, which expired prior to the applicants’ departure to New Zealand in 2010. However, the Tribunal could also accept evidence of use of the strip also by the applicants’ tenants to keep chickens. Counsel criticised the credibility and reliability of the interested parties and their witnesses: the first applicant had a tendency to speculate on matters outwith his knowledge; Mrs Thomson had appeared overly steadfast in her position as being able to give a full account of the condition of the disputed area; Mr Mitchell was speaking of events long ago and the second interested party’s evidence was characterised by lengthy accounts of matters of little relevance. She could not be correct that fence 1 had not created the “kink” which was not consistent with the photographic evidence. Much of her evidence was based upon an AutoCAD plan for which no evidence had been given.

[45] The nature of the strip was such that incidents of possession on a grand scale could not be expected. After reviewing the evidence it could be concluded that the top northern part of the strip was a gravel path clearly bounded on the east side by a hedge which provided a clear delineation of a boundary. It would be clearly evident to any party that this part of the strip was being used as the applicants’ property. Although the lower part of the strip was less clearly defined, the post and wire fence was a clear bounding feature. There was an obvious step leading down from the patio onto the southern part of the strip. The southern part of the strip was a clear continuation of the northern part, down to the road. There was no evidence of any adverse possession by the owners of the field or any party or any objection to the applicants’ possession, which on the authorities was a matter to be taken into account.

[46] Counsel made an additional submission that the applicants’ possession could be seen as interpretative possession under the 1969 deed, even if not for the prescriptive period. Reference was made to Auld v Hay, Wilson v Laing, Lord Advocate v Wemyss, Agnew v Lord Advocate, Hetherington v Galt and Leafrealm Land Limited v City of Edinburgh Council. It was submitted that the possession above described could apply to interpretative possession of the 1969 disposition.

Submissions for interested parties

[47] The Keeper had determined that the applicants’ title was as set out in the 1969 disposition. It was submitted that the Keeper was correct to do so in terms of the letter above referred to. The application should be refused.

[48] We understood counsel to criticise the Plan Assistance Service plan for the applicants’ property (referring to it as a “pink blob”). However we took him to agree that it disclosed “the double feature shown by the ordnance map”, namely the dyke/ house wall and the post and wire fence which were the main subject of the debate.

[49] Counsel criticised evidence of the applicants implying that the new house had been built set back from the original boundary. There was no real evidence to support this position. On the other hand the 1969 plan showed the dyke and house in a continuous straight line and the current house was on the same alignment. The current house was probably in the same position in respect of the boundary as the original house.

[50] The barbed wire fence was probably the same fence as shown in the 1969 plan being parallel to the house at a distance of about 1.2m. Mrs Cosgrove had indicated that the fence was in a dilapidated condition even in the early 1990s. Had the Keeper erred in taking the new build line of the house – we think counsel meant that had the new house been built set back from the original - it is likely that the total area currently shown would have been less than in the 1969 deed plan, not more.

[51] It was clear from the 1969 deed plan that the relevant boundary was the dyke and the wall of the house. This was consistent with all the measurements.

[52] Reference was made to the title of the interested parties. The ground disponed by the disposition in their favour was described by reference to the 1991 disposition. That deed described the subjects “and partly by other subjects now formerly belonging to Charles McCuckin and Mrs Ann McCuckin …” followed by a reference to the 1921 disposition. The 1921 disposition stated that the field was bounded “partly by the east or outside face of a dyke … partly by the outside face of the back wall of a dwellinghouse … partly by a line leading eastwards and continuation of the outside face of said wall till it reaches the south end of the centre of a hedge …”. The deed stated this dwelling belonged to a George Anderson, and the interested parties’ research confirmed that the cottage occupied by George Anderson was now the property of the applicants. It followed that interested parties’ title ran up to the dyke and outside edge of the then house. It was clear that the interested parties had greater right to the disputed strip than the applicants.

[53] It could not be said that farmers of the field had lost their right to any part of the land through operation of prescription. It was common for farmers and keepers of livestock to insert fences away from the boundary in order to protect neighbouring land from being damaged by livestock. This had occurred here. The disputed area was thus “possessed” as much as the field within the fence. Even while there was no stock on the field the potential for reinstating the full area remained. It would be absurd for, as it were, a continual regression of the size of the field to be created. This would occur every time a new fence had to be erected to protect a previously fenced off area now being claimed as garden ground.

[54] It was submitted that the fence shown in the 1969 deed plan could not be ignored and in all probability was fence 2 on the ground. The differences in measurements of area between 849sqm and 882sqm did not provide for additional land beyond the southeast boundary of the applicants’ subjects.

[55] It was submitted that the words in the 1969 disposition “bounded on or towards the southeast by subjects belonging to J McDiarmid along which it extends 158 feet 10 inches or thereby” was a bounding title and not habile to the extended by prescriptive possession. Reference was made to Houston v Barr where the land was bounded by a road or street. The Inner House held this to be a bounding title, which in context of the present case was submitted to be binding authority. Reference was also made to Opinion of the Lord President in Suttie v Baird at p136, quoted by the Tribunal in Campbell-Gray v Keeper, where he stated:-

“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.”

[56] It was submitted that the measure of the applicants’ right in the current case was the very detailed plan which was described at all points. Having regard to the measurements there was no basis on which to criticise the Keeper’s decision.

[57] Under reference to Hamilton v McIntosh Donald and Campbell-Gray, it was submitted that possession must not only be continuous but clearly and unequivocally referable to title of ownership. The use of the strip in front of the dyke as an access point to the bridge could not be indicative of ownership, since the applicants did not own the bridge or have any servitude right across it. Using the strip to gain access to the field or for children to play there was inconsistent with evidence of cultivation. There was no real evidence of cultivation of the area beyond the dyke and in any event was contradicted by the Google images showing a wilderness. The quince bush and birch trees would have prevented access along the strip. The evidence by Mr Thomson and Mrs Thomson in particular, indicating that the area was substantially overgrown, contained pieces of barbed wire, a broken gate, fence posts, nettles, brambles and dockens should be preferred to that of the applicants.

[58] Counsel accepted that the position was different regarding the top section of the disputed area where there was a pebble path which had been used and maintained, although it was argued that the hedge presented a more complex picture with parts of the fence being in the middle of the hedge.

[59] Counsel also referred to HM Registry Plans Practice Guide 40, supplement 1 (30 January 2016) stating that on a 1:2500 map a small dog leg in a fence might not be possibly shown although could be shown on a 1:1250 scale.

[60] The applicants’ evidence was also criticised in that there was a 6½ year period whereby they were unable to speak from their own knowledge as to the condition on the ground. There had not been uncontested possession of the area over the last three years.

[61] The onus for demonstrating that the Keeper had made an error was on the applicant. To grant the rights claimed would impinge upon the apparent and better title of the interested parties, even if it might not intrude upon the current land certificate. It was submitted that interpretative possession did not assist the applicants.

Discussion

[62] A preliminary criticism made by the interested parties was that the applicants’ position was unclear with regard to the proposed register plan. No such point was made at the procedural hearing and we do not think there is anything in it. The applicants’ position has consistently been to maintain a title according to the Registers of Scotland Plan Assistance Service plan prepared in the registration process, but ultimately not accepted by the Keeper. The plan is in fact on a 1:1250 scale and is therefore more detailed than the parties’ respective registered plans which are on a 1:2500 scale. Nevertheless all plans show the dual feature which can only be interpreted as the dyke extending to the rear wall of the house, and the adjacent fence. We think the applicants’ position is suitably clear. On the other hand at various stages the interested parties suggested their boundary at the top part of the disputed strip might run somewhere within the parallel lines of the wall and fence. This position had not been very clearly articulated in the papers or raised as an issue at the procedural hearing.

[63] The first real question is whether the terms of the 1969 disposition are habile to permit prescriptive possession of the disputed area. We bear in mind the following passage of the Lord Justice Clerk in Auld v Hay at p668:-

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

And

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

[64] The relevant boundary in the 1969 disposition is described as “bounded … by subjects belonging to J McDiarmid …”. The words of the deed in gremio do not refer to an actual boundary feature for this boundary. It is only by reference to the plan, which is described as demonstrative only, that the boundary appears to be the stone wall and wall of the house. The words of the deed do specify features for other boundaries, such as “a farm road” and “a wooden fence”. It is therefore curious why the draftsman did not seek to use words such as “bounded by the outer face of a stone wall” or similar for the southeast boundary.

[65] The words “bounded by the lands of A” or equivalent have been held to admit of possession in a title. We quote the Lord President in Suttie v Baird at p135:-

“The third component is described as ‘mutual boundary between said subjects and the adjoining plot of ground marked “plot No. 39” on said plan’. But this is not a line which can be regarded as fixed by the titles. As Lord Salvesen remarked in Troup v Aberdeen Heritable Securities Co,, 1916 2 SLT at p142:- “Now, when two properties are described as being bounded by each other, the line is not one which can be definitely ascertained from the titles alone even after an examination of the ground itself … There is no fixed or indubitable line such as, according to Erskine’s definition, is necessary for a bounding charter.”

And at p136:-

“The question is whether the description of the land conveyed by the feu disposition is habile to include that strip of ground. As Lord Salvesen put it in Troup v Aberdeen Heritable Securities Co., the testis whether the ground as possessed fits the description in the title on which possession has followed …”

[66] As the plan is declared to be demonstrative only, we have difficulty in necessarily construing the dyke and house wall as a “fixed or indubitable line” particularly where the absence of a description of a boundary feature in the deed wording is somewhat remarkable. The wording “bounded … by subjects belonging to J McDairmid” would no doubt be rendered otiose if the plan was declared to be taxative, but this is not the case. So we do not think the deed excludes the possibility of a boundary fixed by possession in the light of the authorities. The cases founded upon by the interested parties where the titles were held to be bounding, namely Houston v Barr and Campbell-Gray v The Keeper, were cases where the titles expressly specified the boundary feature. In Houston v Barr this was a public road or street and in Campbell-Gray v The Keeper this was an access road. That is not the case here where the boundary description is less emphatic.

[67] Accordingly, we think the 1969 disposition does admit possession to establish the southeast boundary. We do not say this reflects a “true” interpretation of the deed, but consider it is a construction to which the deed is susceptible.

[68] The interested parties’ title as registered does not include the disputed area, and the land register plan is consistent with the 2016 deed plan in their favour. As far as we know the interested parties have not sought to rectify the register and only at a late stage in the present process have they sought to show that they have the better title to the disputed area. The applicants’ submission made passing reference to the “curtain principle” which they suggested might prevent further scrutiny of the interested parties’ title. In our view the so called curtain principle, such as it was, never prevented scrutiny of the sasine background to a registered title in rectification proceedings under the 1979 Act, where there was no proprietor in possession. The point was not developed. Our only comment would be that we would need persuasion to find that the 2012 Act regime should generally prevent relevant titles behind a registration from being examined in a s.82 reference. That said we agree the starting point in any proceedings has to be the contents of the land register, and the interested parties have not sought to have their title rectified. However we do not think we can safely ignore the interested parties’ underlying titles, since we require to ascertain a boundary described as “bounded … by subjects belonging to … (the interested parties’ predecessor).”

[69] The interested parties pointed out that the 2016 disposition in their favour contains a description by reference to the 1991 disposition, and the 1991 disposition in turn refers to the 1921 disposition for description. The latter describes the boundary as up to the east or outside face of a dyke and the outside face of the back wall of a dwellinghouse, inferentially being the current subjects. Thus it was argued they had the better title to the disputed area. We referred counsel to Halliday, Conveyancing paragraph 33.16 whereby a requirement of the statutory format for a description by reference is this. The conveyance should contain a reference to a prior recorded deed containing a particular description, not merely another description by reference. We are therefore doubtful that the requirement can be described merely as good practice or that the interested parties could thereby claim an express title up to the dyke and the house wall. Nevertheless we note that the 1991 disposition which has been validly referred to includes a boundary description “partly by other subjects now or formerly belonging to Charles McCucken and Mrs Ann McCucken …” who are predecessors of the applicants. Thus the interested parties’ title boundary could potentially be determined by possession on a not dissimilar basis to that of the applicants’ title boundary. This would seem to fortify our view on the construction of the applicants’ title and would potentially avoid the result of a strip of no man’s land lying between the respective properties.

[70] We think that the applicants’ other points about the 1969 plan are at most makeweights. We agree that the boundary line drawn on the 1969 plan is remarkably thick. Unlike most modern title plans it is not possible to see the boundary feature under the “coloured” boundary line. If to scale the line could be as wide as four feet at its widest point, although the width varies. If the wall in 1969 was indeed one foot six inches wide, the “overlap” could be as wide as two feet six inches. If the overlap were taken to extend from the outside of the dyke rather than the inside, its width would not be inconsistent with our estimate of the gap between the dyke and the removed section of fence 2. So we suppose it could then be said, somewhat tentatively, that the plan itself is also habile to include a small strip beyond the dyke and house wall. Although the plan does not show the thick line extending as far as the post and wire fence, it could be argued that the fence line is merely illustrative since no measurement of the gap with the wall is stated.

[71] Our impression however is that the post and wire fence shown in the 1969 plan is very possibly the same fence as fence 2. There was no evidence of Mr Mitchell senior’s fence having been replaced on a new line before the interested parties came on the scene. Also, it can be seen from the 1969 plan that the gap very slightly widens as the fence proceeds north east, which is consistent with fence 2 shown on the O/S map implied by the current register plans. It is not necessary for us to reach a firm view on this point, however, in the light of our earlier findings.

[72] It is the case that the house and sheds on the 1969 plan have been rebuilt. We do not think we can accept that the interested parties’ evidence positively establishes that the rear wall of the current house is in precisely the same position as the rear wall of the 1969 house. It seems to us that that sort of analysis would require to include a finding that the 1969 plan was accurate in relation to surrounding identifiable features, and/ or a valid comparison to be made of subsequent ordnance survey plans accurate to an appropriate level of detail. Whatever study was carried out it was not produced to us in a meaningful way, and whatever expertise the second interested party has, she cannot be described as an independent expert.

[73] Looking at the matter for ourselves, it is possible to discern on site that the rear wall of the house is not exactly flush with the dyke – it is slightly set back perhaps by about the width of the dyke itself. We are unable to say whether this was the case in 1969. This feature is not clearly shown by the 1969 plan. All we can say is that we cannot rule out the possibility that some space was created behind the new house when it was constructed.

[74] The hedge at the southeast top boundary is shown in the 1969 plan as existing in a rounded fashion and then running flush with the marked boundary. The evidence indicates that this is the snowberry hedge which has always been there, which can now be seen running flush with the post and wire fence and creating the gap for the pebble path. On the face of it this would suggest that the boundary is the current post and wire fence, and implies that the house has moved back from this position since 1969. However we cannot exclude the possibility that the snowberry hedge has simply moved over the last 50 years. Again, it is not necessary for us to reach a firm view on this point.

[75] What is clear is that the detailed measurements stated in the deed and plan have become more difficult to establish over time. With changes on the ground reference points for the stated dimensions become uncertain. If the 47 foot 9 inch distance for the southwest boundary is taken from an old concrete pier at the nw corner of the site, our measurements confirm that it runs exactly to an existing wooden stob (of unknown age) at the opposite sw corner. That stob is situated in a position which is roughly in line with the former fence 2, thus the stated distance would be habile to include gap between dyke and fence. But this issue depends upon the concrete pier being an original boundary feature, or at least being in line with an original boundary feature. The concrete pier is quite possibly shown in the 1969 plan in line with a corner of the site, but the deed wording does not refer to it. Instead the deed wording refers to the southwest boundary as a wooden fence which the plan describes as “dilapidated.” So without the same “dilapidated” fence being in existence after 50 years a clear starting for point the measurement becomes inconclusive.

[76] There is also the stated 46 foot 10 inch (14.3m) measurement for the northeast boundary. We took the first interested party to indicate in his written evidence that he had measured 14.2m from fence 2 to the farm track to the north. That would suggest the measurement is habile to include the disputed area i.e. the area between the fence and the back wall of the house. However, our own measurements (checked at a second site visit) indicate a distance of 17m between the fence and the interface of the farm track and applicants’ driveway. This suggests either that the 1969 measurements were incorrect, and/ or that the uncontroversial “squaring off” realignments by the Keeper of the 1969 site plan to the O/S map have widened this dimension. On any view the measurement is sensitive to its 1969 start point which is difficult to ascertain. So again we feel the stated distance is inconclusive as to the possibility of ruling in or ruling out the disputed area from the 1969 title. In these circumstances we think that particular leeway has to be given to the words “or thereby” for the 1969 measurements.

[77] Potentially the disputed area could, in our estimation, extend to some 53.3 sqm i.e. an addition of 6% to the current registered area of approx. 883sqm. We are not inclined to think that of itself is particularly significant, and in context can be explained by the fact that the site is somewhat elongated, and that the disputed area, itself relatively narrow, runs the full length of the long dimension.

[78] We now turn to the issue of prescriptive possession. We have little difficulty in finding that the northeast or top section of the disputed area has been possessed by the applicants for more than the prescriptive 10 years since 1995. This is clear from the pebble path and various services for the house located there. The path is accessed via a step from the patio or a gap between the house and shed. The issue was not seriously disputed by interested parties’ counsel. We also think that the snowberry and leylandii hedges can only have been regarded as a boundary feature and it is inherently likely that these were installed by a previous owner of Riomhach, rather than an owner of the field. If the fence were to be removed, these features would still displace the field owner from possession of the disputed area. In addition we accept the applicants’ evidence that they have maintained these hedges. We agree that this sort of possession is unequivocally referable to an assertion of ownership and is sufficiently open to allow anyone with a competing title an opportunity to challenge the possession: points 2 and 5 of Lord Justice Clerk in Hamilton v Macintosh Donald Ltd p321-322. We are inclined to think that the legal boundary is the fence which is just outside the hedge line, which fence will have always belonged to the field.

[79] Proceeding southwest to the lower part of the disputed area, the evidence demonstrates that a short distance from the end of the hedge there was a large quince bush in line with a point where the applicants’ patio becomes a grassy garden area. There is a photograph which identifies this bush bare of leaves lying in the disputed area, close to a birch tree, existing on 14 February 2017. This appears to have been prior to its being cut down, we infer, by the interested parties. We infer it is the recovered bush which currently exists in the same position, which we have taken to be in line with a point about 4m from the end of the house. We are prepared to accept the applicants’ evidence that the same bush can be seen in a photograph dated 1999/2000 and are content with the explanation that the picture shows it has “flopped” over the wall into the garden at the point in question. This is a visibly domestic bush which yields fruit and we are agree that it tends to establish possession for the applicants for the area it occupies.

[80] We have more difficulty with the remaining strip as it proceeds towards the field entrance and culvert and bridge. We saw no evidence of domestic flowers for ourselves and none was shown in any of the lodged photographs. We accept that the applicants are not suggesting that the area was anything other than a “wild” garden, but this immediately raises a question whether such “possession” is sufficiently open and conspicuous that a person with a competing title would have reasonable opportunity to challenge. The applicants’ position is not assisted by the overgrown condition shown by the Google images of September 2008 and November 2009. Moreover, the use of the strip for children playing and access is somewhat inconsistent with the notion of any deliberate cultivation there. We are inclined to agree with the interested parties that children and others using the strip to access other land not belonging to the applicants is at best neutral to the question whether the use is referable to title of ownership. The photograph of the hen barrier looks like a temporary structure and while we cannot say how long it was in existence, it could not have been for much more than the duration of the final tenancy which we understood to be for a period of about 4 or 5 years. Maintenance work done to the dyke would also be neutral to the question of possession of the strip.

[81] So absent convincing direct evidence of suitable possession of the remaining part of the lower strip, we turn to what other factors may be in play. It is necessary to look at the nature of the subjects claimed: Hamilton v Macintosh Donald Ltd, point 4. We accept that the disputed area was in effect created by the owner or occupier of the field putting down a fence as a barrier for cattle in the 1950s or 1960s. The evidence indicates that the field has been arable at least since 1995 while the applicants lived at the subjects. There is evidence that this section of fence 2 was already dilapidated or in poor condition by the early 1990s. It is not clear how long before then stock stopped using the field.

[82] It was argued under reference to Hamilton v Macintosh Donald Ltd point 9 that it was significant there had been no adverse possession to that of the applicants. This potentially comes into conflict with point 6 (continuous possession) where a party in possession might lose it by abandonment or by possession being taken from him. We think a question of possible abandonment is relevant. A field owner may put down a fence to stop stock grazing over the boundary because the traditional dyke is not suitable for this purpose. He might subsequently neglect the fence simply because he is not currently using the field for stock. The fence is not needed while the field is being used as an arable field. So it is difficult to infer that the field owner has in any sense abandoned the “barrier” area which has been previously laid down any more than he has abandoned the future possibility of reintroducing stock into the field. So we do not think too much can be made of the absence of counter possession having regard to the nature of the disputed area.

[83] This brings us to the seventh point (p323):-

“(7) It is a cardinal rule that there is only prescription insofar as there has been possession – tantum praescriptum quantum possessum. In this connection it is important to distinguish between cases where, as here, prescription is relied upon to enable a new right to be acquired, and cases where prescription is relied on for the purposes of establishing the extent of a right which the claimant already has. In Lord Advocate v Wemyss (1899) 2 F (HL) 1 at p9 Lord Watson said: ‘There is in apprehension, or ought to be, a practical distinction recognised between the prescriptive possession which establishes a new and adverse right in the possessor, and the prescriptive possession which the law admits, for the purpose of construing or explaining, in a question with its author, the limits of an antecedent grant or conveyance. In the first case the rule obtains tantum praescriptum quantum possessum. In the second, it appears to me that a much more liberal effect has been given to partial acts of possession as evidencing proprietary possession of the whole, in cases where the subjects of controversy has been in itself a distinct and definite tenement”.

[84] It seems to us that the current case does not easily fall within either case envisaged by Lord Watson. Prescriptive possession is relied upon here for the purpose of construing or explaining a title, but not in a question with the direct author of the conveyance. We are attracted to Lord Prosser’s analysis in the Outer House at p136:-

“As regards the scope or extent of possession, I do not doubt that issues between grantor and grantee may be resolved by quite small partial possession, of a kind which, apart from the terms of the grant, would not suffice to establish possession of the whole subjects. Nonetheless, in ‘new adverse right’ cases such as the present, it must in my view always be a question of circumstances whether acts of possession, each in itself extending to something less than the whole subjects in dispute, can together be regarded as justifying an inference that ownership of the subjects as a whole is being asserted by these acts”.

[85] We are also conscious of further matters of principle on the issue of partial possession. Lord Osborne in Safeway Stores plc v Tesco Stores Ltd quoting Stair, Institutions II .1.3 at p54:-

“As he who posseseth a field needs not go about it all, or touch every turf of it, by himself or his cattle, but by possessing a part, posseseth the whole, unless there were contrary possessory acts”.

[86] Safeway Stores was a case concerning a “proprietor in possession” under s.9 of the 1979 Act, not prescriptive possession, but the passage in question was being quoted as a matter of broader principle. The passage does indicate that possession of the greater part of lands can be said to include possession of the whole, although His Lordship emphasised the words “unless there were contrary possessory acts.”

[87] In context it might be said that as the applicants have possessed the upper part of the disputed strip down to the quince bush, which is to some extent larger than the remaining lower part, they should be taken in the circumstances to have possessed the whole strip. Counsel argued that the southern part of the strip is a clear continuation delineated by the post and wire fence of the northern end, and as we understood it could thus be considered part of a whole. We have some difficulty with this. The “clear continuation” was only by virtue of a rather dilapidated structure, namely the old fence 2, which seems to have been in such condition at least during the period of the applicants’ ownership. The strip was effectively blocked as a single entity or access by virtue of the quince bush and birch trees, and only for the top part served a more identifiable function for services for the house. So it does not seem a logical conclusion that possession of the upper part can constitute possession of the whole. It follows that we are not persuaded that the applicants have prescriptively possessed the disputed strip beyond and to the southwest of the position of the patio and quince bush, either on the basis of direct possession or broader legal concept. We consider the correct boundary line thence to be the continuing outside face of the dyke, which was maintained and thus possessed by the applicants.

[88] It follows that it is unnecessary for us to deal with the applicants’ argument as to interpretive possession.

Conclusion

[89] We conclude that the 1969 disposition is habile to allow the applicants to prove prescriptive possession of the disputed area. We are satisfied that they have prescriptively possessed the disputed area from its northeast point adjoining The Well, southwestwards, as it runs adjacent to the house and patio, up to and including the area occupied by the existing quince bush. We are not satisfied that the applicants have prescriptively possessed the disputed strip to the southwest of the quince bush towards the field entrance. It follows that the applicants have established ownership of that part of the disputed strip between the northeast point of the strip and the quince bush. We conclude that the applicants’ registered title is currently inaccurate in part, and should be rectified in accordance with the above conclusion.

[90] We would invite the Keeper to liaise with our clerk for the purpose of redrafting the applicants’ title plan in accordance with this Opinion.

Appendix 1

Appendix 2