1. This is an appeal under Section 25 of the Land Registration (Scotland) Act 1979 (“the Act”) against the failure of the Keeper to rectify, under Section 9 of the Act, the registered titles of the interested parties. The case involves an apparent overlap area of land shown both within the appellants’ sasine title and the interested parties’ registered titles.
2. The subjects are in Oyne, Aberdeenshire. They lie close to the well-known landmark of the Bennachie range of hills. The disputed area is a narrow strip of ground about 350m long lying between a burn and a dyke. The strip is essentially the east bank of the burn upon which there are trees. The width of the strip varies but is, broadly speaking, only a few feet wide. The strip is at the boundary between the appellants’ and interested parties’ properties. The strip is at the eastern boundary of the appellants’ subjects and the western boundary of the interested parties’ subjects.
Land Registration Act 1979
Section 9 provides:
“9. Subject to subsection (3) below, the Keeper may whether on being so requested or not, and shall, on being so ordered by the Court or the Lands Tribunal for Scotland, rectify any inaccuracy in the register by inserting, amending or cancelling anything therein …
(3) If rectification under subsection (1) above would prejudice a proprietor in possession—
(a) the Keeper may exercise his power to rectify only where - …
(b) the Court or the Lands Tribunal for Scotland may order the Keeper to rectify only where …”
Section 9(3) and following provisions define circumstances in which rectification is competent notwithstanding prejudice to a proprietor in possession. It was not maintained that the interested parties were proprietors in possession within the meaning of the section.
Section 25 provides inter alia as follows:
“25(1) … an appeal shall lie, on any question of fact or law arising from anything done or omitted to be done by the Keeper under this Act, to the Lands Tribunal for Scotland.”
Land Registration etc (Scotland) Act 2012
The 2012 Act came fully into force on 8 December 2014. It repeals much (but not all) of the 1979 Act, including sections 9 and 25. In the present case the appeal to the Tribunal was lodged prior to the coming into force of the 2012 Act. In these circumstances we propose to follow our decision in Wight v The Keeper and deal with the case under the provisions of the 1979 Act.
Prescription and Limitation (Scotland) Act 1973 (“the 1973 Act”)
“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…
then, as from the expiry of that period, the real right so far as relating to that land shall be exempt from challenge.”
Hamilton v McIntosh Donald Limited 1994 SC 304
Wight v The Keeper LTS 2014-3; 2015 SLT (Lands Tr) 195
Gordon, Scottish Land Law (Second Edition) paragraph 12-35
3. The appellants had submitted an application for rectification of the interested parties’ titles to the Keeper on 18 August 2013. The Keeper declined to rectify by letter dated 19 December 2013. The appellants appealed to the Tribunal on 8 July 2014. The Keeper’s Answers indicated that there appeared to be a title overlap and indicated that she was unable to determine whether the Land Register was inaccurate and that she was unable to adjudicate. The Keeper did not appear at the subsequent hearing.
4. In March 2015 the interested parties sought dismissal of the appeal on the basis that the appellants had not produced their sasine title in full, and in particular had not produced the relevant sasine title plan. This was produced by July 2015. By Note of 29 July 2015 the Tribunal advised parties, amongst other things, of the need to specify facts and law upon which they intended to rely. A hearing was set down for 16 June 2016. This was discharged when it emerged that the appellants intended to lead evidence of the planting of trees on the disputed area supported by the production of extensive diary entries since the 1980s, of which advance notice had not been given. The appellants thereupon provided certain details of activity upon the disputed area. The diaries were sent for forensic examination by an expert for the interested parties under our supervision. An accompanied site visit was held on 10 June 2016 and an unaccompanied site visit was held on 14 September 2016. During the former visit it emerged that the interested parties had obtained an interdict against the appellants from entering upon their property. The interested parties, through their solicitor, expressly permitted the appellants to enter their land during the site visit and waived any right to take action should the attendance at the site visit have transgressed the terms of the interdict.
5. The hearing took place on 28 and 29 September and 7 October 2016. The appellants were unrepresented. The interested parties were represented by Mr Love, solicitor, of Messrs James and George Collie, Aberdeen. The appellants gave evidence. Mrs Mearns gave evidence for the interested parties. The interested parties also called as witnesses, Mrs Maureen Blower, Mr Michael Blower, Mr Sean Mardon and Mr Anthony Gladwin.
Background facts and circumstances
6. The appellants are heritable proprietors of Nursery Cottage, Oyne, Aberdeenshire in terms of a disposition by Mrs June Reid Snowdon in their favour recorded GRS (Aberdeen) 20 July 1981. The subjects were, rather confusingly as will appear, formerly known as Hillfoot Cottage. The 1981 disposition gave a description “… that piece of ground on which the dwellinghouse now known as … is built … extending to 1.265 acres or thereby …” and provides a description by reference in terms of “the subjects more particularly described in, disponed by and delineated and coloured blue and marked 127 on the inset plan No. 11 annexed and signed as relative to …” the disposition by James Barclay Milne with consents therein mentioned in favour of George Donald … recorded GRS (Aberdeen) 17 October 1953.
7. The 1953 disposition dispones:
“that piece of ground on which the dwelling house known as Nursery Cottage is built…as at present occupied and possessed by Thomas Donald as tenant thereof …”
It goes on to refer to the said acreage and inset plan and provides:
“… but declaring that the said extent and said Plan though respectively believed to be correct are not warranted;”
The disposition further provides:-
“… and where the subjects hereby disponed adjoin subjects not forming part of said Estate of Logie the boundary shall be the boundary thereof as possessed by me …”
8. Inset No. 11 of the disposition plan showed Nursery Croft coloured in blue, as part of lot 127 of Logie and Tillymorgan Estates which we infer were being broken up at that time. We shall describe this plan in more detail later. The plan states that it has been reproduced from the Ordnance Survey Map. Various other inset plans are reproduced alongside inset No.11, not relevant to the disposition, identifying various other lots being sold at the time. The plan also states
“NOTE- This plan is published for convenience of purchasers only. Its accuracy is not guaranteed and it is expressly excluded from any contract.”
9. The appellants acquired further land in about 1991 extending their property to the west. This is not relevant for present purposes.
10. The second interested parties acquired the neighbouring subjects now named Hillfoot, Oyne with entry on 2 November 2012. It is a cottage within about 2 acres of ground. This property was formerly known as Howford. It is held under title ABN113075 and was first registered in November 2012. The first interested party, of whom the second interested parties are directors and shareholders, acquired an adjoining larger area of land to the south and east of Hillfoot also on 2 November 2012. That land is registered under title number ABN113073 and was also first registered in November 2012. This land comprises mainly woodland with some grassy areas. The two pieces of land extend to approximately 19.655 acres and had been sold by the former owner of the Pittodrie Estate, namely a Mr Theodore Smith and his wife. The two areas of land had previously been transferred as one of a number of parcels to Mr Smith by disposition by Pittodrie Estate Limited recorded GRS (Aberdeen) 26 October 1992. We understood that Mr Smith had had a controlling interest in Pittodrie Estate Limited. The subjects at Hillfoot were described as “being the subjects coloured blue on plan “C” annexed and executed as relative” to the 1992 disposition. The descriptions of the property in the relevant dispositions to the interested parties referred to the 1992 disposition description.
11. The Nursery Cottage subjects consist of a cottage and a garden with wooded area. This area has been enclosed by a high fence and, at the north, by two sets of large gates. The subjects also extend northwards comprising a long driveway which reaches a crossroads with a public road. The driveway is about 285m long. The eastern boundary of the Nursery cottage, garden and wooded area, and the driveway itself, is almost entirely adjacent to the Hillfoot subjects held under the two registered titles. Along the eastern verge of the drive is a burn. It runs northwards from Bennachie in the south. The burn is one or two feet wide. Along the eastern bank of the burn, which bank as we have said is at most a few feet wide, runs a stone dyke.
12. The red line boundaries of the interested parties’ registered titles show the western boundary of the Hillfoot subjects to be the burn, i.e. including the dyke and the disputed area. The title plans include relevant features taken from the Ordnance Map. The wording of the Property Section descriptions of the titles makes no reference to the burn, so the nature of the boundary requires to be inferred from the title plans themselves. It can be presumed that it extends up to the medium filum of the burn. On the other hand the 1953 disposition plan, which provides the basis of the description of the appellants’ title, shows some but not all of the disputed area to be shaded in blue thereby inferring that, for certain parts at least, the appellants’ title apparently reaches up to the wall or its centre line. Accordingly, as the Keeper has indicated, there appears to be a title overlap.
13. At this point it is appropriate to describe certain reference points in more detail. The appendix to this Opinion is a plan taken from an updated Ordnance Survey plan relative to the Hillfoot properties. We have marked points A, B, C, D, E and F. Point A is a point where the disputed area reaches the crossroads at the entrance to the appellants’ subjects. Point B is about 185m south of point A, where there is a pond or marshy area on the interested parties’ land to the east of the dyke. At this point another wall intersects with the “boundary” wall which runs south-east bisecting the interested parties’ subjects. Point C is a point along the disputed area adjacent to the northern of the two gates into the Nursery Cottage and garden wooded area. Points A-C represent the length of the drive which, as we have said, is about 285m long. Point D is a position on the disputed area approximately parallel with the south facing wall of nursery cottage itself. We heard that the appellants demolished and replaced the south part of their cottage but that the location of the south point of the building was not significantly changed. Point D is about 50m south of point C. Point E is about 20m south of point D and is at the confluence of the burn and another burn or ditch which runs beside the south boundary of the interested parties’ property. At this point the dyke turns south east and forms the interested parties’ south boundary with the Pittodrie estate, which we were informed now belongs to the MacDonald Hotel Group. Point F is about 15- 20m to the south of point E. It represents a point on the burn adjacent to the southmost garden wall of the appellants’ property. The east boundary at E-F of the appellants’ property is not with land belonging to the interested parties. At this point the appellants’ boundary is with the said owners of the Pittodrie Estate.
14. As we have indicated, the registered Hillfoot title plans show the western boundaries extending north from point E to point A along the burn. In fact the boundaries show the Hillfoot title to extend, at the crossroads point A, beyond the burn and into a “bulge” and, at least, up to the edge of the metalled surface of the road. On the other hand the appellants’ sasine title plan, that is Lot 127 on the “inset” No.11 plan attached to the 1953 disposition, is shaded blue on what is the disputed area from about point D - C and point C - B. There is no blue shading on the disputed area between points F-E or E-D. Here the blue shading stops at the burn. At point B, where there appears to be a system of culverts shown on the inset plan, the disputed area is not shaded blue for a few metres. Thereafter moving north towards where point A “ought” to be, a few more metres of disputed area are shaded blue, at which point the entire inset plan is “cut off” and nothing more is shown of the cottage drive or the disputed area. About 165m of the northmost part of the drive is not shown on the deed plan. Turning to the south of what we have described as the drive is, in the title plan, shown as a track which continues through the cottage grounds southwards and on towards Bennachie. That part of the track no longer exists within the cottage grounds.
15. Part of the background is that there is a path which runs through the interested parties’ land to the east of the dyke. It runs mostly parallel with the Nursery Cottage driveway, apart from point B where it skirts around the marshy area. Both the Hillfoot path and the Nursery Cottage drive at various times have been used for public access to Bennachie. At one time the public and the Forestry Commission took access along the appellants’ driveway and, as mentioned above, what had been a track or path continued by passing the cottage itself and going through the cottage grounds. In 1986 the appellants disputed that there was a public right of way, with a contrary position being asserted by the local authority. At some point the appellants closed off the access where it existed adjacent to the cottage itself. We heard that in the mid-1980s the owner of Pittodrie Estate (which still included Hillfoot) accepted public access on to the Hillfoot path from the Nursery Cottage drive at a point about 50m north of point C. Mr Tock informed us that he built a small bridge across the burn to allow the public to cross the burn at this point. Photographs from that time consistently show a narrow strip being fenced off for the public access on the Hillfoot/ Pittodrie side, adjacent to the dyke.
16. Then in the mid-1990s the Pittodrie Estate extended the path on the Pittodrie side to the crossroads. A letter from Gordon District Council of 30 March 1995 to the late Mr Smith indicates that the work on the path had been completed and:-
“The result, as the trees grow, will be an increasingly delightful route for people on their way to and from the hill”.
In other words it would appear that the creation or extension of the path was associated with the planting of trees.
17. At some point it would appear that the interested parties, after they took entry, blocked off the public access on the Hillfoot/ Pittodrie side thus requiring the public to take access once more upon the appellants’ driveway. The closure of the access may have been associated with certain temporary drainage works being carried out at the crossroads, but this matter was not explored in evidence. At the time of both site visits the access on the Pittodrie side was open, and from our own observation there may be an alternative access via the appellants’ driveway although the burn crossing is now much nearer to point C.
Evidence for appellants
18. Relations deteriorated in about April 2013 following certain drainage operations at the crossroads by the interested parties involving a ditch running along the north of the Hillfoot boundary flowing into the burn. Mrs Tock said that Mrs Mearns had viewed the Tock title deeds at this time in her kitchen. On 5 July 2013 the interested parties’ solicitors wrote to the appellants informing them of the interested parties’ boundary in terms of one or both of the land certificates. The letter asked the appellants to desist from placing stones in the burn to stop water from the interested parties’ property discharging into the burn. The letter also required the appellants to remove fencing which had been placed by the appellants, we understood, along the dyke between points C and E. The letter acknowledged that the appellants claimed that they owned the burn and asked for a copy of the appellants’ title deeds if they disputed the points made in the letter.
19. At this point Mrs Tock had discussions with the Registers of Scotland which ultimately led to the appellants’ application for rectification of the interested parties’ titles in August 2013. The Keeper declined to rectify in terms of a letter of 19 December 2013. Nevertheless Mrs Tock took the view that that letter supported her position. In December 2013 Mr Mearns and a neighbour, Mr Blower cut down trees on the disputed area. The police became involved in the dispute. There was further correspondence with the Registers of Scotland in February 2014. The dispute escalated further with Sheriff Court proceedings during 2014 which led to an interdict being granted against Mr and Mrs Tock. It would appear there were criminal proceedings also. She referred to various incidents where the police were called.
20. Mrs Tock referred to a larger plan identifying numerous lots of land, no doubt from the time of the breaking up of the Logie estate, which showed the track pertaining to lot 127 to extend in blue all the way up to the crossroads. The appellants had sworn an affidavit (headed, per incuriam “Affadavit of Ownership”) to the effect that she and her husband owned all the land shown coloured blue in lot 127 in the 1953 disposition in favour of Donald. The affidavit annexes the larger plan, but it was pointed out in cross examination that the annexed plan bore to have been appended to a different disposition, stating that it was referred to in a “foregoing disposition” granted in favour of a certain Frederick Dawn. We later heard that Mr Dawn had apparently purchased one of the other lots. Mrs Tock’s position was that the Dawn plan gave a more accurate description of her title.
21. Mrs Tock believed that the amount of water going through the burn increased in about 1984, it previously having been a small ditch. We understood she thought this to have been on account of some change of activity by the water authority. She referred to various photographs taken over the years showing the extent of trees at various locations. She also had obtained a black and white photograph, said to be dated about 1870, showing a conical building opposite the cottage adjacent to the burn. This was believed to be an old mill, no longer in existence.
22. Mr Tock’s position was to defer to his wife on boundary issues. Nevertheless he himself appeared to have carried out a great deal of work to the Nursery Cottage property since moving in in 1981. He produced a large number of diary entries said to support his position, although he did not refer to them in detail. He put up a deer fence to counter problems deer were causing in the garden. So far as relevant this fence was placed on the west side of the burn between points F and E; it then crossed the burn at E running along the dyke and proceeded to point C whereupon it crossed the burn again westwards to join the entrance gates. He also put in water gates at points E and C to catch debris which would flow down towards what is now a culvert at point A. He initially mentioned building the fence between 1983-1985, but we understood him to say that the deer fence was completed all round the immediate boundaries of his property – i.e. excluding the driveway - in about 1993. He did not put up a deer fence from position C to A adjacent to the drive where there was an existing fence emerging from the top of the wall. He said the water gate and some of the fence at the top of his garden – i.e. around E – were replaced in 2012.
23. In about 1984 he commenced planting trees. He had wished a shelter to prevent snow drifts across his driveway both from the prevailing west wind, and the east. According to him he planted three rows of trees; a row of predominantly sitka spruce to the west of the track between points C and A; a row to the east of the track up to the burn from C to A which were predominantly hardwood and scots pine; and controversially, he said he planted a row of sitka spruce on the disputed area to the east of the burn up to the dyke from C to A. He also re-enforced existing tree stands to the east of the burn between points E and C; i.e. adjacent to his garden area. These appear to have included golden leylandii cypress trees. He believed these areas were in his title. Mr Tock also spoke to clearing out the burn by hand. There was never opposition or confrontation from Mr and Mrs Smith and the Pittodrie Estate to his activities. Mr Smith’s mother had lived at Hillfoot in the 1980s and at some point his sister lived there as well.
24. The trees to the east of the track were in fact cut down by the local electricity supplier, SSE. This appears to have been in about 2009, on the basis that they were likely to interfere with an overhead electricity line. There are three tree stumps on the disputed area at the crossroads, and Mr Tock indicated that the trees, which had been planted by him, had also been cut down by SSE. He replaced the southern water gate and deer fence at the top (i.e. south) of his garden in 2012. He did not carry out any maintenance to the trees which he had planted on the east bank of the burn.
25. Mr Tock’s diary entries indicate that eight or so trees were cut down by Mr Mearns and Mr Blower in December 2013. This is in the area D-E of the disputed area. The entries also indicate that Mr and Mrs Mearns, Mr Blower and another had removed the deer fence and water gates and parts of the dyke on 31 July 2013. This was not disputed.
Evidence for interested parties
26. Mr and Mrs Mearns had bought their property from the late Mr Theodore Smith and his wife. At the time Mr Smith had implied that he owned the disputed area since he had said it would be possible to cut down trees blocking the light, which included trees to the west which would block the view of sunset. Once the present dispute was referred to the Tribunal Mrs Mearns had again spoken to Mr Smith. His opinion had been that the boundary was the centre of the burn since this was his understanding of Scots law. At this point in the proceedings the appellants had not raised the issue of tree planting on the disputed area and consequently she had not spoken to Mr Smith about that. He died prior to the issue being introduced into the proceedings, as mentioned above.
27. Mrs Mearns had obtained historical records from the Ordnance Survey and National Archives. The estates of Logie (at some point including Elphinstone) and Pittodrie had been contiguous. Nursery cottage had historically been part of Logie estate whereas Hillfoot had been part of Pittodrie. Old estate plans for each showed that, before the dyke had been built, the only boundary feature could have been the burn. Furthermore, water had been drawn from the burn by the relevant water authority since the 1950s. Respective dispositions of land to the south of the disputed area by the owners of Pittodrie and Logie in the 1950s for water purposes showed each owner conveying a small area of land to the burn on his respective side, for the purposes of a cistern. Mrs Mearns also produced an historical text by McConnochie on Bennachie. This shows that the area of Bennachie was once a commonty which was divided between adjoining estates in 1859. The text quotes the official boundaries stated in an interlocutor of the Court of Session which can be matched to a plan prepared by a reporter to the court. These refer to a “march ditch” to the old market road which appears to be the present burn.
28. Mrs Mearns had also obtained documents showing that the Pittodrie Estate had had longstanding agreements with the Forestry Commission for grants for the planting of trees on the estate. In particular, she obtained documents relating to a woodland grant scheme contract ref: 513002077 which included planting on a 47.7 ha area that included the land at Hillfoot. A planned period of operations was described between 1992 and 1998. The row of sitka spruce along the disputed area looked, in her opinion, very similar in size and features to a plantation block on one of the interested parties’ fields which she understood had been planted in the mid-1990s. A further comparison could be made from aerial photographs.
29. Mrs Mearns indicated that when she and her husband took entry, the council had a few years earlier replaced pipes running under their path (ie the Bennachie path on their side of the disputed area running parallel with the appellants’ drive) connecting the burn to a ditch for drainage purposes. The council had left rubble on the disputed area which had been allowed to remain. Matters had come to a head when the interested parties had extended or deepened their ditch to make it more effective and, as we understood it, potentially linked the burn to an outflow of a septic tank via the ditch and the council pipes. In about April 2013 the appellants blocked up one of the pipes feeding into the burn. The interested parties carried out further work in the area in 2014, which appears to have involved SEPA.
30. Mrs Mearns had spoken to a Mr Burr, who was not called as a witness, who had worked for Mr Smith. He apparently believed that the Pittodrie estate had planted the trees on the disputed area. There had been some mention of Mr Smith “re-allocating resources” from Forestry Commission purposes to the estate’s purposes, which we understood to mean planting on areas not designated by the Forestry Commission.
31. Certain trees at area D-E were cut down by Mr Mearns and Mr Blower because large branches had blown down in a storm. The interested parties were concerned about the safety of the public using the path. We note that Mrs Mearn’s diary entries show a fraught scene involving the appellants when the trees were being cut down. The police were involved in this incident or series of incidents. Although certain photographs were produced we intend to pass no comment upon whether the condition of the trees justified the action, since the matter did not appear to relate to the issues before us and was not explored.
32. Mrs Mearns mentioned a further pile of sand or rubble deposited at or about point A. This had been left by Mr Tock several years before when he had removed a sleeper bridge across the burn at the crossroads and had replaced it with a conduit. This area is within the red line “bulge” on the interested parties’ title plan, ABN113075. Mrs Mearns said that after she had moved in she explained to Mr Tock that it was on her land and asked him to remove it. He duly did so.
33. Mr Marden had cleared the Pittodrie access path to the east of the dyke for the purpose of facilitating his riding business. This was in about 2002. He had done so with the knowledge and approval of Mr Smith. He cut back the branches of the sitka spruce inasmuch as they were impeding the access, these being the trees planted along the disputed area. Occasionally he would require to move into the disputed area in order to prune the trees.
34. Mr Gladwin had been a farmer living at Horndoyne Farm which is adjacent to the north and west of Nursery Cottage. He had lived there between 1987 and 1991. His farming operations extended to the Hillfoot fields as they then were. He remembered saplings planted on either side of the Nursery Cottage track. He did not think there had been a third row of trees on the disputed area. He remembered going up the track trying to recover sheep which had escaped there. He specifically recalled tree guards on either side of the track. He was sure he did not see saplings on the disputed area.
35. Mrs Blower had lived at Horndoyne Farm since 1991, having purchased it from Mr Gladwin. She had regularly spoken to Mrs Tock. Mrs Blower had a view of the driveway from her house and had never seen Mr Tock working on the east side of the burn, i.e. on the disputed area. The Tocks had never indicated that they had planted trees on the disputed area. There had been problems when Mr Tock removed the bridge at point A since in severe weather the replacement pipe could not cope and the area flooded. She had seen Mr Tock putting up chicken wire on the back wall of his property in 2012.
36. Mr Blower farms at Horndoyne and had also worked for Pittodrie estate. At one stage he had had regular contact with Mrs Tock. He had seen Mr Tock working on his drive but never on the burn. Mr Tock had never claimed to have planted the trees on the disputed area as far as he was aware. Mr Blower had helped remove felled trees around Hillfoot while the land was still in the ownership of the late Mr Smith. He had also removed the trees felled at point A. The timber had been left by whoever had felled it and he took it to an old garage base to the east of Hillfoot at the request of Mr Smith.
Submission for appellants
37. The written case of the appellants contends that they have enjoyed and maintained their property openly, peaceably and without judicial interruption for 32 years. The oral submission insofar as relevant was that the interested parties had failed to provide legal documents to support their case. The appellants contended they had owned (we infer possessed) the land to the dyke and fence since 1981. The Registers of Scotland had supported their position. The plan which appeared to have been used in the registration process of the interested parties, namely plan “C” attached to the 1992 disposition had, in terms, not been based upon a site survey. There was an error in that certain arrows pointing to “dyke (fence on top)” was incorrect since the arrows were, in fact, pointing to the ditch. We note this was along the south boundary of the Hillfoot property, not the disputed area.
38. It was submitted that the letter from the interested parties’ solicitor of 5 July 2013 had no basis for suggesting that the boundary was the centre line of the burn, or for suggesting there was a servitude right to discharge sewage into a dry ditch. Mr Tock reasserted that he had planted trees on the east bank of the burn.
Submission for interested parties
39. It was submitted that the appellants had not established a title to the disputed area by positive prescription. The 1953 disposition title plan in favour of the appellants’ predecessor did not support the appellants’ boundary contention. It did not show the appellants owned any of the drive at the point where the relevant inset plan was “severed”. The terms of the plan were caveated. The appellants’ title plan could not succeed in a contest with the interested parties’ title sheets which showed the interested parties in ownership of the disputed area to the north. The appellants could not claim to have possessed the disputed area under a recorded deed in the light of the “severed” plan used in the 1953 disposition. The interested parties’ title was good since plan “C” to the 1992 disposition showed the area shaded blue to extend to the burn, albeit only faintly.
40. The interested parties’ solicitor conceded that it was arguable that the 1953 disposition was not a bounding title and that the boundary could be explained by possession. However he sought to rely upon Gordon, Land Law (2nd Ed) paragraph 12-35 for the proposition that where exact boundaries are specified it is not possible to claim ownership by prescriptive possession.
41. It was submitted that the burn was the historical boundary, as evidenced by the old Ordnance Survey plans which showed at one time there was no dyke, but, it could be inferred, there must have still been a boundary. It was clear from the historical documents that the burn formed the boundary between Logie and Pittodrie Estates.
42. It was submitted there was no reason for excluding the burn from the Pittodrie title in terms of practicability or good land management.
43. It was further submitted that the appellants had not, in any event, established prescriptive possession which required to be open and not clandestine. Mr Tock’s evidence as to the planting of the third row of sitka spruce had been vague, and, under cross-examination, angry and dismissive. It was questioned why a shelter belt would be required to the east of the burn when the prevailing wind was to the west. Mr Tock did not refer to specific diary entries in his verbal testimony. The contention of the tree planting only emerged after the late Mr Smith and other family members had died, making it impossible for the interested parties to find direct contradictory evidence. Mr Gladwin who was a neutral witness was clear he had not seen trees or saplings on the disputed area at the time by which time Mr Tock had claimed he had planted them. Mr Tock’s evidence was also inconsistent with that of Mr and Mrs Blower.
44. Mr Smith had not lived at Hillfoot and there had been a certain amount of evidence that his mother and sister who did live at Hillfoot were somewhat reclusive and lived behind an impenetrable wall of trees. It was inherently unlikely that they would have known about the activities on the disputed area so as to challenge them. The evidence, albeit some of it hearsay, suggested that Mr Smith considered that he had owned the disputed area since he had retained the timber of the three trees cut down by the electricity company. The late Mr Smith had also indicated that the trees could be cut down or lopped. Even if Mr Tock had planted the trees it could be inferred that they had been planted in a clandestine manner.
45. It was submitted that the appellants’ own evidence should be treated carefully since the affidavit, apparently sworn before a Justice of the Peace at Aberdeen Sheriff Court, used a title plan that had nothing to do with their title. It could be seen from correspondence that this affidavit had been used to seek to claim large sums from Mr and Mrs Blower on the contention that the latter had left their wheelie bins on the appellants’ land.
46. It could be inferred that Pittodrie estate may have used its large stock of sitka spruce obtained by a Forestry Commission grant to plant such trees along the disputed area. The Forestry Commission documents were consistent with that.
47. It was submitted that the fence put up by Mr Tock had not been erected openly. There was much undergrowth. Mrs Blower had seen a fence being put up in 2012 which was inconsistent with fencing having been put up earlier. The diary entries about putting up fencing were somewhat neutral. The possibility that Mr Tock had planted cypress trees at the top of his garden was inconsistent with the area of planting indicated in the pleadings to the Tribunal.
48. In summary it was submitted that the appellants had not discharged the onus of showing prescriptive possession.
Discussion by Tribunal
49. The issue in this case is whether the Land Register is inaccurate regarding the interested parties’ titles. This subsumes the question which party has the better title to the disputed area. It was not argued whether the interested parties might be proprietors in possession in terms of section 9 of the 1979 Act. The Tribunal had made reference to section 9 in our Note to parties of 29 July 2015, but the point was not raised by the Keeper or the interested parties. Rather, the issue before us was whether the appellants have succeeded in showing whether their title has been explained and fortified by prescriptive possession in terms of section 1 of the 1973 Act.
50. The first registration of the Hillfoot subjects exposed an apparent title overlap. This has led to a remarkably bitter dispute. The respective diary entries of Mr Tock and Mrs Mearns record several distressing scenes of conflict. We heard in passing of one or more interdict orders, a criminal prosecution and we saw for ourselves one CCTV camera on the disputed area and elsewhere a sign warning of another nearby. A letter from a Chief Superintendent of Police Scotland states that since 6 March 2015 Mrs Tock has contacted the police on at least 119 occasions regarding a civil land dispute. This background has led us to assess the factual evidence with particular care.
51. As we shall come to discuss, critical to this case is the assessment of the appellants’ evidence of prescriptive possession. Mrs Tock was adamant that the Keeper’s letter of 19 December 2013 (“… this Agency simply does not have any judicial capacity which would allow a decision to be reached, on the basis of evidence submitted to us, that of the two competing titles it is that of your neighbours which is inaccurate and can be amended…”) in fact meant that the Keeper was supporting her position. She was unable to accept she could be wrong about that; i.e. that as the words plainly suggest, the Keeper was taking a neutral position in the matter. Of more concern is the affidavit apparently sworn by the appellants which had been used to attempt to claim “rent” from neighbours. The clear inference from the affidavit was that the annexed plan was part of the progress of the appellants’ sasine titles. The annexed plan in fact comes from some other disposition of property in the area. It well may be that in proper context the “full” plan shows an intention by someone, at the time of the breaking up the Logie estate, that the Nursery Cottage subjects would comprise the whole of the track shown on that plan as coloured in blue. But it was not this version of the plan which was used in the 1953 disposition. To a layman the affidavit would show that the appellants’ title is stronger to the driveway area, including the disputed area, than it is in reality. The affidavit is therefore misleading. We doubt it has been professionally revised. It is of some concern that it appears to have been given credence by being sworn before a Justice of the Peace at Aberdeen Sheriff Court. We shall return to further credibility issues.
52. We are persuaded that historically, and prior to the dyke being built, the original boundary between the Logie and Pittodrie estates was the burn. The papers relating to the division of the Commonty of Bennachie in 1859 refer to a “march ditch” at the location of the present burn. This is good evidence that it was then regarded as the boundary. The history suggests that the extent of the Commonty was agreed upon by the neighbouring landowners. These landowners included the owner of Ryehill, which land appears to have become part of Logie and Elphinstone on the one hand, and the owner of Pittodrie on the other. We also accept that to the south of the disputed subjects, where there is no dyke, the boundary remained as the burn. This can be taken from the two dispositions to the relevant water authority in the 1950s for the construction of intake areas or cisterns adjacent to the burn; one disposition being of a small area to the immediate east of the burn, bounded by the medium filum, and the other to the immediate west.
53. It would appear from the Ordnance Survey plans that the dyke was completed by 1900. So the question becomes whether at some point the boundary moved with the dyke. We note that the dyke has one and possibly more watering points for stock on the east side so we doubt whether the boundary was strictly the burn or the dyke was of much practical importance while the subjects were in agricultural use.
54. We are persuaded, just, that the 1992 disposition in favour of the interested parties’ predecessors did include the disputed area to the east of the burn. This can be discerned from a close examination of the faintly coloured area on an enlarged plan C. However in substance there was no direct evidence that the Pittodrie title was fortified by positive prescription in respect of this area.
55. We now turn to the appellants’ sasine title. The interested parties’ submission was to the effect that this title could not avail itself of positive prescription in a contest with the interested parties’ title because the appellants’ title plan was “cut off” at a point on the drive just to the north of point B. There was no plan annexed to the disposition for the remainder of the drive which could be described as a habile title. We reject that submission. The title would only prevent operation of positive prescription if it gave a bounding description in terms of the plan. This is not the case. As the interested parties’ solicitor had already pointed out in the pleadings, the words in the disposition referring to the area and plan are qualified; moreover the plan is not described as taxative. It is clear from the terms of the 1953 disposition itself that it provides, in essence, a common law description (“… that piece of ground on which the dwellinghouse known as Nursery Cottage is built … as at present occupied and possessed by Thomas Donald as tenant thereof”); and, critically, … “where the subjects hereby disponed adjoin subjects not forming part of the said estate of Logie the boundary shall be the boundary as possessed by me …”. In our opinion this is a habile title within the meaning of section 1 of the 1973 Act.
56. It follows that we should consider whether the Nursery Cottage boundaries can be explained and fortified by ten year prescriptive possession. Although not cited to us we have had regard to Hamilton v McIntosh Donald Limited. The Lord Justice Clerk identified nine principles of prescriptive possession. Insofar as relevant to the present dispute the second principle emphasises the importance of the possession being open so that anyone with a competing title has an opportunity to challenge the possession. In terms of the fourth principle, 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. In terms of the seventh principle, there is a distinction between cases where 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 the latter type of case, it is said that a more liberal effect has been given to partial acts of possession as evidencing proprietary possession of the whole. This is in cases where the subject of controversy has been in itself a distinct and definite tenement. In the ninth place, the onus is on the party alleging prescriptive possession. In the context of a rectification application as we have here, that principle would seem to apply since the appellants require to satisfy us that the interested parties’ title is inaccurate.
57. We now turn to the evidence of positive prescription. The longest section of the disputed area, namely the area beside the drive between points C and A extending about 285m, was also the most controversial. There was no dispute that the appellants had generally possessed the drive to the west of the burn. As far as the disputed area to the east of the burn and indeed elsewhere is concerned, we noted and pointed out at the hearing that there are “S” symbols linking the disputed area with other parts of the Nursery Cottage grounds on the 1953 plan. According to the Ordnance Survey these are field tie or area brace symbols used to give a single field parcel number relevant to any given area measurement. It is possible that these could be construed as an adminicle of evidence of possession by the occupier of the property, on the assumption that the Ordnance Survey had thought there was some practical connection between the “linked” areas. On the other hand, in the present case we were not informed of the age of the OS map used in the 1953 disposition and, for the area in question namely C-A, we were not given any idea as to what the nature of any possession might have been at the time of the survey. We therefore do not attach significant weight to the symbol for this particular area.
58. The C-A disputed area to the east of the burn is dominated by a row of large, regularly planted sitka spruce trees. These are not dissimilar in appearance to the sitka spruce trees planted under forestry commission grants in the 1990s on the nearby Hillfoot subjects. There was a credibility issue whether Mr Tock had, as he had maintained, in fact planted them. No other witness, let alone a neutral witness, gave evidence in support of Mr Tock’s position. His diary entries although supporting the issue of planting generally, were not specifically identified by him in connection with the disputed area we are considering. Our own examination of the entries indicates that while they do support the planting of sitka spruce, they are neutral to the question of location. It is accepted that a row of sitka spruce had been planted by Mr Tock to the west of the drive, so the diary does not help with this question. We have to agree that his evidence on the point was vague, and in cross-examination was dismissive and, in our view, defensive. Significantly, the burden of his evidence was that the main sitka spruce planting took place in the mid-1980s. This is borne out by diary entries. But his position on location was contradicted by the evidence of Mr Gladwin who appeared to us to be a straightforward witness. He had known the property between 1987 and 1991 and did not think there were saplings on the east bank. In assessing the credibility of the appellants’ evidence we have to add to our earlier comments that they had not given notice of tree planting prior to the discharged hearing, despite the terms of our earlier Note, which position could potentially have resulted in the interested parties being taken by surprise and unable to deal with the point. By the time notice was given the late Mr Smith had died and any opportunity for taking his evidence had been lost. This tends to reinforce our view that the appellants’ approach to this part of the case was somewhat defensive.
59. In these circumstances we are not satisfied with the evidence that Mr Tock did plant the row of sitka spruce. Having said that, there is scanty evidence as to whether the converse is true namely that the Pittodrie Estate and/ or the late Mr Smith in fact did plant them. Mrs Mearns referred to some hearsay evidence from the late Mr Smith and Mr Burr. Mr Blower’s evidence that Mr Smith had wanted the timber from the three trees felled on the disputed area in about 2009 suggests that Mr Smith regarded the disputed area or part of it as his property. But the Forestry Commission documents are far from conclusive. These indicate that the area to the immediate east of the disputed area was to be planted with broad leafed trees and with sitka spruce compartments to the east of that. Those broad leafed trees are now growing on site. On the other hand, an application form for a grant apparently completed by or on behalf of Mr Smith in 1991 referred to “the future intention would be to concentrate the commercial sectors of the wood to the west and south peripheries and around the lowland fields”. It would be possible to infer that the intended “commercial” planting related to the sitka spruce, and that the “lowland fields” included the fields around Hillfoot. But putting it all together we do not feel the evidence is strong enough to make a positive finding as to who planted the trees. On the whole, we are content to base this part of our decision upon onus of proof; we are not satisfied that the appellants have established prescriptive possession for the area between C-A or that the interested parties’ title is inaccurate in this area.
60. We now turn to the disputed area between points D-C. This is an area where the appellants’ title plan does show the entire section shaded in blue. It is also the area which is closest to the cottage itself and where there is a row of pre-1981 aspen trees reinforcing the boundary. There was some evidence comprising a photograph of what we understood to be an old mill in this area, taken well over a century ago, on the Logie side. It seems to us it would have been inherently likely for a mill to use the whole width of the burn. Such a use would have been consistent with one of the area brace symbols we have already mentioned on the 1953 disposition plan. Although we do not know the date of the underlying Ordnance survey, the plan shows a building consistent with the mill on the old black and white photograph. The 1953 disposition plan also shows two dotted lines crossing the blue shaded area including the burn, thus denoting some sort of feature there at the time of the survey. Recent photographs lodged show a wall perpendicular to the dyke crossing the line of the burn at about point C, which is consistent with the location of one of the dotted lines. This wall added to the dyke would have given some sense of enclosure in the immediate vicinity of the cottage. This coupled to the fact that the burn is relatively narrow suggests that the immediate area can be viewed, somewhat broadly, as a distinct large garden area. In these circumstances the seventh principle in Hamilton v McIntosh Donald Limited tends to avail the appellants; namely possession of part of the area may infer possession of the whole.
61. Of perhaps more significance, Mr Tock’s diary entries gave a considerable amount of detail as to the work he carried out over the years. The entries were not seriously challenged, and although not gone into detail at the hearing, are nevertheless before us. They record, for example, in 1993 Mr Tock carried out work at the D-C location; with entries such as “started building bottom garden fence;” “Final netting under bottom garden fence. Building up fence/ dyke/ fence gate;” and “Hanging bottom garden burn gate”. Our observations of the photographs showed the fencing, prior to its removal by the interested parties, to be rusty in parts, thus consistent with age of the 1993 entry. The fencing was substantial, consisting of fine meshing and posts at least to chest level. We think that the fencing, running as it did along the top of the dyke, would have been fairly visible to anyone with a competing title visiting the area from the east side. Coupled with the burn maintenance activities mentioned in evidence and noted in the diaries, we are satisfied that the acts of possession of the appellants in the area were of sufficient quality in order to acquire prescriptive title.
62. Finally, we turn to disputed area E-D. Here the disputed area is not coloured blue in the appellants’ title. Nevertheless, as we have indicated, their title is not a bounding title, and it is still open to them to seek to establish prescriptive possession of precise boundaries. We do not know what feature existed if any which may have caused the draftsman to commence the blue area east of the burn only at point D-C. But there is evidence of possession beyond the blue area. In particular, Mr Tock’s oral evidence of building the fence was supported by his 1993 diary entries. These were consistent with the fence also being put up at this location: e.g. “Top garden fencing over burn;” “ Top garden burn side fence;” “Tying up top burn fence …” and, in 2000 “rebuilding top garden deer fence – new strainer …”
63. Furthermore, Mr Tock gave evidence that he had planted golden leylandii cypress trees within this area. This was not clear from the written case, but appeared to be a development of his position that there were existing trees reinforcing the boundary. We observed that there were eight stumps of such trees which we understood had been cut down by the interested parties. Our own observations indicated that some or more of these trees appeared to be over 25 years old prior to being cut down. It is inherently unlikely that they had been planted by virtue of Forestry Commission grants by the Pittodrie estate, whose records did not show any contemplation for this species to be planted. It is much more likely, as Mr Tock said, that he had planted them as ornamental trees to reinforce the boundary. Again, we think anyone with a competing title walking along the adjacent path to the east would have recognised these as such. Given the planting of such trees, and the evidence of the substantial fencing, we conclude that the possession of the area was significant and open. On balance we are prepared to accept that the appellants acquired title to this area by prescriptive possession.
64. We find that the interested parties’ titles are inaccurate as to the true boundary between points C-D and D-E as identified on the plan annexed to this Opinion. In respect of these points we order the Keeper to rectify the title sheets so that the boundary is the centre line of the dyke to the east of the burn. We do not find that the interested parties’ titles are inaccurate as to the boundary between points C-B and B-A. Here the boundary should remain as shown in the interested parties’ title sheets, namely the line of the burn and along its extended line at the crossroads at point A. We recommend however that the Keeper should clarify that, where the burn is the boundary, the boundary is to the medium filum.