Curtain Principle and Midcouple Requirement Reaffirmed: No “Solum Rights” Without a Pleaded Link in Title; Contractual Access May Be Vindicated Without Proving Ownership

Introduction

This Outer House decision, EE Ltd v Appleby and Howe [2025] CSOH 95, arises from EE Limited’s efforts to deliver a Shared Rural Network mobile mast in Caithness. The mast site, lawfully consented and leased through Caledonia Forest Land Investments Limited (CFLIL), is reached via a route that crosses the Far North Railway at a level crossing near Station House, Altnabreac—the home of the defenders, Mr Appleby and Ms Howe. EE alleges the defenders obstructed access (locked gates, parked vehicles, erected fences). EE seeks interdict (injunction), interim interdict, orders ad factum praestandum (to perform specified acts), and damages. The defenders counterclaimed for a “compensation payment,” an order compelling EE to contract with them, and—if that failed—interdict barring EE from using the crossing, all on the footing that Mr Appleby owns the solum (the ground) of the crossing.

At the debate (pleadings-only hearing), the court was asked to determine the relevancy of key averments. The central legal themes were:

Whether the defenders’ registered title (CTH7726) encompasses the crossing solum.
Whether the defenders’ reliance on prior Sasine deeds and an intended Notice of Title could found a present claim of ownership, absent identification of a “midcouple.”
Whether EE needed to establish ownership or a competing real right in order to challenge the defenders’ averments and protect its contractual access.
Whether the defenders’ servitude and mineral rights are a relevant defence to obstruction.
Case management and fairness: equality of arms, debate scope, and the role of pleas-in-law and Notes of Argument.

Summary of the Judgment

Lord Lake sustained EE’s pleas, struck out as irrelevant the defenders’ averments asserting present ownership of the level crossing under their registered title, and rejected attempts to found ownership on prior Sasine deeds and an intended Notice of Title that lacked any pleaded “midcouple” linking the 1979 Loch Dhu Estate disposition to the first defender. The concept of “solum rights” distinct from ownership was rejected. The defenders’ averments about mineral rights were held irrelevant to the lawfulness of EE’s access and works. The court accepted the defender’s servitudes exist but held their exercise and alleged October 2023 events are fact-sensitive matters for proof; however, servitudes do not provide a general defence to obstructing EE’s separate access rights.

The counterclaim was dismissed in toto. Procedural criticisms—alleged abuse of process by EE, inequality of arms, and Article 6 unfairness—were rejected. The court reaffirmed the limited scope of a debate (Jamieson v Jamieson) and set a By Order hearing to manage next steps. Importantly, the court clarified that EE, as a contractual rights-holder, can challenge the relevancy of a defender’s ownership averments without having to prove ownership of the crossing itself.

Analysis

Precedents Cited and Their Role

May Fung Chung v Keeper of the Registers of Scotland [2024] LTS 14: Cited for the Land Register “curtain principle”—the registered title sheet and plan are the measure of the registered proprietor’s extent, obviating routine recourse to prior Sasine deeds. The court endorsed this proposition in relation to determining what CTH7726 covers; the title plan did not include the crossing, which defeated any plea that registered title presently encompassed it.
BAM TCP Atlantic Square Ltd v BT plc [2020] CSOH 57 (Lady Wolffe): Reinforces the curtain principle. Lord Lake acknowledged that where the claim is to land not on the registered title, parties may go behind the register—but then the law of completing title (including Notices of Title and the “midcouple”) applies. You cannot bypass the Land Register by broad references to prior deeds without pleading the legal link that transfers the infeft title to you.
GCN (Scotland) Ltd v Gillespie [2019] CSOH 82: The defenders invoked GCN to argue that EE lacked standing because it lacked title, but the case actually illustrates that a non-owner in possession can interdict dispossession. Lord Lake distinguished it: neither EE nor the defenders possess the crossing (Network Rail does), and EE’s case is about enforcing contractual access and resisting obstruction, not asserting ownership.
Douglas & Angus Estates & Carmichael v McAllister [2015] CSIH 2 and Mather v Alexander (1926) SC 139: Cited on “title to sue.” The Inner House there noted logical precedence of title issues where pleaded, and that an ex facie valid conveyance may suffice absent a competing title. Lord Lake clarified that here, EE need not show a conveyance; it requires an ex facie valid basis for the rights it asserts (its lease/access arrangements). The defenders had not pled a plea-in-law attacking EE’s title to sue; their “standing” objection failed at debate.
Colquhoun v Paton (1859) 21 D 996: Supports granting interdict to protect possession or use even where ultimate ownership lies elsewhere (the pier attached to the foreshore). Used to rebut the suggestion that only an owner can obtain relief. Ownership is not invariably a prerequisite to protect legitimate possession/use.
Jamieson v Jamieson 1952 SC (HL) 44: The classic relevancy test—unless the pleadings must necessarily fail, the matter goes to proof. Lord Lake applied this to confine the debate to pleadings and incorporated documents only, refusing to weigh evidence or determine ultimate ownership at this stage.
Alvis v Harrison 1991 SLT 64 and Cusine & Paisley, Servitudes: Servitudes must be exercised civiliter (reasonably and in the least burdensome manner). The fact-sensitive question of whether the defenders’ conduct met that standard is left for proof.
Campbell v McCutcheon 1963 SC 505: The general rule that a conveyance carries minerals unless reserved. Not determinative here due to the pleadings-based posture; more importantly, Lord Lake held that even if mineral rights are held by the defenders, they do not justify obstruction of access or works authorised by others.
PIK Facilities Ltd v Shell UK Ltd 2005 SCLR 958: Specific implement cannot compel a party to contract absent a prior obligation. This underpinned the court’s scepticism of the counterclaim seeking to force EE to enter an agreement, though the counterclaim was dismissed more broadly for irrelevancy.

Legal Reasoning

1) Registered title governs the present extent; the “curtain principle” applies

The defenders pled that CTH7726 (Station House) “includes ownership of the solum to the private level crossing.” The court inspected the title sheet and plan and found the crossing clearly outside the registered boundary—an admission the defenders ultimately made. Under the curtain principle, the Land Register defines the extent of the registered proprietor’s land. Accordingly, any plea of present ownership under CTH7726 was irrelevant and struck out.

2) No free-standing “solum rights”; ownership requires a pleaded chain—especially where relying on a Notice of Title

The defenders sought to deploy prior Sasine deeds—especially the 1979 Loch Dhu Estate disposition—plus an intended Notice of Title to claim the crossing solum. Lord Lake offered two pivotal clarifications:

A Notice of Title is a mechanism to complete a right by establishing the link from the last infeft owner to the applicant. That link—the “midcouple”—is essential. Merely asserting “off-register rights” or “lawful succession” is insufficient; the midcouple must be identified and pleaded. The defenders’ pleadings lacked any midcouple connecting the 1979 disponee (John Archibald Sinclair) to the first defender for the crossing solum.
The 1979 deed and plan did not carry the argument. The annexed plan showed the railway separating two red-line parcels. The text at clause (Five)(b) conveyed only “such rights as I may have in … the railway line … together with the solum,” which does not assert that the granter did in fact own that solum. Whether the solum formed part of the 1912 disposition referenced is an evidential matter inappropriate for debate, and in any event, the defenders did not plead a chain transferring any such right to them.

Consequently, averments relying on prior deeds and a future Notice of Title were held irrelevant. The court explicitly rejected a supposed category of “solum rights” distinct from ownership: ownership of the solum is ownership of land; there is no separate real right class called “solum rights” transmissible without title.

3) Contractual access can be vindicated without proving ownership; defenders cannot defeat claims by mere assertion of ownership

The defenders pressed that EE lacked standing because it was not the owner and was allegedly acting “by proxy” for Network Rail. The court rejected this on multiple grounds:

EE’s claim is not to prove ownership of the crossing; it is to enforce contractual access and to prevent obstruction. For that, the pursuer need only show an ex facie valid basis for its asserted rights (its lease/access agreements with CFLIL)—not a conveyance of the crossing solum.
It was the defenders who put title to the crossing in issue as a defence to alleged obstruction. EE is entitled to challenge the relevancy of those averments. It would be untenable if a defender could defeat a claim simply by stating “I own it,” forcing the pursuer to prove ownership to proceed.
Authorities such as Colquhoun and GCN confirm that protecting possession/use via interdict does not always require ownership. In any event, this case is not about dispossessing the defenders of land they possess; it concerns EE’s access to a site under its contracts.

4) Servitudes: accepted in principle, but they impose a civiliter duty and do not trump others’ rights

The court accepted the first defender benefits from servitudes (pedestrian/vehicular access; water). However, servitudes must be exercised civiliter, and nothing in the existence of those servitudes entitled the defenders to obstruct EE’s separate access arrangements or to preclude CFLIL’s juristic acts (such as granting rights to EE). Whether the defenders’ conduct during a storm event in October 2023 was a reasonable exercise of servitude rights is a fact question reserved for proof.

5) Mineral rights: irrelevant to the alleged obstruction

The defenders’ pleaded mineral rights—even if established—could not justify obstructing EE’s access or works. Mineral ownership, without more, is not a licence to bar surface access authorised by the surface owner or its contractors, nor does it entitle the mineral holder to commandeer a level crossing to the exclusion of other lawful users. The mineral averments were struck as irrelevant.

6) Case management, fairness, and debate scope

The court set important procedural markers:

Equality of arms does not give a party a right to halt a part-heard debate to seek advice. The defenders had been twice sisted to obtain advice and had lodged detailed pleadings and a Note of Arguments. Refusing a late adjournment was not a breach of Article 6.
Arguments at debate are bounded by the pleadings and incorporated productions. New arguments not foreshadowed by a plea-in-law or the Note of Arguments will not be entertained. The court declined invitations from both sides to consider non-incorporated documents.
A debate is not a mini-proof. The court applied Jamieson: it does not weigh evidence or resolve ownership; it decides whether averments are relevant enough to go to proof. The outcome here does not determine who ultimately owns the crossing and does not bind Network Rail.

Impact

Property and registration practice

Registered title is decisive for present extent: Where a party’s registered title and plan do not include a feature (here, the crossing solum), the court will treat claims of present ownership under that title as irrelevant.
Notice of Title is not a shortcut: A party claiming ownership of unregistered land via an intended Notice of Title must plead the midcouple (the connecting legal event) that transmits the last infeft title to them. Vague references to “off-register rights,” general “succession,” or functional/geographical connectedness are insufficient.
No “solum rights” category: Practitioners should avoid pleading constructs suggesting a distinct transmissible “solum right” separate from ownership; the solum is the land, and ownership must be proved through title.

Infrastructure and telecoms delivery

Contractual access can be protected: Network operators implementing the Shared Rural Network can enforce access against obstruction without proving title to every step of the route, provided they can show an ex facie valid arrangement with the landowner(s).
Obstruction by nearby proprietors: Local landowners cannot derail deployments by unparticularised assertions of ownership of crossings or corridors. If they invoke title to justify obstruction, they must plead a cogent link in title.

Litigation management and party litigants

Pleas-in-law and Notes of Argument matter: Debates will be confined to issues properly opened by pleas and argued in Notes of Argument. Parties—especially party litigants—should not expect late adjournments to add new arguments.
Article 6 and equality of arms: Fairness applies to both sides. Prior opportunities to take advice and robust case management will be respected; the court will not permit duplicative or tactical motions to procure “a second bite” at debate.

Parallel and future proceedings

The court emphasised that determining relevancy at debate does not resolve ultimate ownership of the crossing and does not predetermine disputes with Network Rail. Ownership claims may be litigated elsewhere on proper pleadings and proof.

Complex Concepts Simplified

Solum: The “soil” or ground itself. Owning the solum is simply owning the land; there is no separate “solum right” distinct from ownership.
Land Register “curtain principle”: For land on the Land Register, the title sheet and plan are the authoritative measure of the extent and burdens. Ordinarily, parties need not (and should not) go behind the register to prior Sasine deeds to define extent.
Notice of Title: A deed used to complete title to land where the legal link to the last infeft owner (the “midcouple”) arises other than by a registrable disposition (e.g., court appointment of an executor). The midcouple must be identified; without it, a Notice of Title cannot validly be registered.
Midcouple: The legal “bridge” connecting the last registered/recorded owner to the current claimant (for example, a court order or other legally operative transfer). It is the essential element that allows the Keeper to update the register.
Servitude (easement): A limited real right (e.g., of access or water) over a neighbouring property. The benefited owner must exercise it civiliter—reasonably and in the least burdensome way for the burdened land.
Interdict: A court order prohibiting certain conduct (akin to an injunction). Interim interdict is the temporary form pending final determination.
Ad factum praestandum: An order requiring a party to do a specific act.
Plea-in-law: A concise legal proposition at the end of pleadings that anchors the party’s requests and legal arguments. Debates are organised around these pleas.
Exclusion from probation: Striking out averments as irrelevant so they cannot be proved at the evidential hearing.
Absolvitor: Final decree assoilzieing (absolving) the defender; sought unsuccessfully by the defenders at an earlier stage.
By Order hearing: A procedural management hearing to set next steps, including proof and expenses.

Conclusion

EE Ltd v Appleby and Howe is a robust reaffirmation of two core land law propositions and one procedural rubric. First, the Land Register’s curtain principle remains the starting point and, for registered titles, the finishing line: the title sheet and plan define the present extent. Second, where a party claims unregistered land by resort to prior Sasine deeds and an intended Notice of Title, they must plead the midcouple—the legal link from the last infeft proprietor to themselves. Without it, averments of ownership will be struck out; there are no freestanding “solum rights.”

Third, at the litigation level, a pursuer seeking to vindicate contractual access does not have to prove ownership of contested land to challenge the relevancy of a defender’s ownership assertions. Defenders cannot neutralise enforcement of access rights by bare claims of ownership. Servitudes, while recognised, must be exercised civiliter and do not confer a veto over others’ lawful rights; mineral rights, without more, do not justify obstructing access or surface works.

The court also provides a salutary reminder on debate practice: arguments must be properly foreshadowed by pleas-in-law and Notes of Argument; Article 6 does not entitle a party to pause a part-heard debate for tactical recalibration; and a relevancy debate is not a forum for fact-finding on ultimate ownership. The practical effect is to facilitate timely delivery of infrastructure where lawful access exists, while preserving—at proof—only those disputes properly raised and legally sustainable.