Factual and Procedural Background
This opinion concerns a boundary dispute between the Plaintiff, owner of Creag Mhor House, and the Defendants, proprietors of adjacent land known as Orchard, located in Aberfoyle. The Plaintiff’s title derives from a 1987 disposition recorded in the General Register of Sasines, while the Defendants’ title is registered under the Land Registration (Scotland) Act 2012 as of 2022. A disputed portion of land lies between their respective undisputed titles. The Plaintiff claims that part of her garden, included in her 1987 disposition, was annexed by the Defendants in 2022 when they removed a boundary fence and trees from the Plaintiff’s garden. The Defendants admit entering the disputed land and removing greenery but deny that the land ever formed part of the Plaintiff’s title, asserting it belongs to them.
The Plaintiff seeks various remedies including declarators that the Defendants’ title sheet and cadastral map are manifestly inaccurate under section 80 of the 2012 Act, an order for rectification of the register, interdict against future trespass, reinstatement of the boundary fence, and damages for past trespass and harassment.
The procedural issue before the court is whether the dispute can be resolved solely by examining the deeds or whether a proof before answer (trial) is required to hear evidence on the factual disputes regarding boundary location and title validity. There is also a subsidiary issue concerning the relevancy and specification of the Plaintiff’s pleadings on trespass and harassment.
Legal Issues Presented
- Whether the court can decide the boundary dispute in favour of the Defendants purely on the basis of the deeds without hearing evidence.
- Whether the Plaintiff’s pleadings on rectification of the Land Register are sufficiently relevant and specified to proceed to proof before answer.
- Whether the Plaintiff’s claims for trespass and harassment are sufficiently pleaded to warrant proof.
Arguments of the Parties
Defendants' Arguments
- The Defendants contend there is no inaccuracy in their title because their predecessor’s title benefits from the Keeper’s Midas touch, which confers ownership regardless of underlying deeds.
- All titles involved are bounding titles, making extrinsic evidence inadmissible to alter boundaries.
- Possession beyond defined boundaries cannot confer title by prescription.
- The 1987 disposition expressly excluded the land conveyed in the 1986 disposition, which includes the disputed portion, so the Plaintiff cannot claim title to it.
- The Plaintiff’s pleadings do not establish a manifest inaccuracy in the title sheet or cadastral map.
- Evidence regarding the fence’s location is irrelevant since the fence may not mark the true boundary.
- The burdens clause in the 1987 disposition should not affect boundary interpretation.
- The Plaintiff’s trespass pleadings lack averments that the Defendants knew or ought to have known they were trespassing; thus, they are not fit for proof.
- The harassment claim does not establish a course of conduct under the Protection from Harassment Act 1987, and no case is made against the second Defendant.
- The combined claim for trespass and damages is insufficiently specified.
Plaintiff's Arguments
- The Midas touch is irrelevant because the Plaintiff offers to prove the Keeper had power to rectify the register immediately before the designated day.
- There is no inconsistency between the 1986 and 1987 dispositions; the dispute concerns the true location of the boundary, necessitating evidence.
- The case is analogous to Drumalbyn Development Trust v Page where proof was required to resolve boundary issues.
- The Plaintiff may succeed by proving either that the 1987 disposition included the disputed portion or that title was acquired through prescription.
- The Plaintiff’s title is habile (capable) to include the disputed portion as it lies within the verbal description of the subjects.
- The Plaintiff’s possession of the disputed land is relevant to the rectification claim and title acquisition.
- The Plaintiff’s pleadings adequately allege a manifest inaccuracy requiring rectification.
- The Defendants deliberately entered the disputed land and carried out acts constituting trespass, regardless of their belief about ownership.
- The alleged conduct of the Defendants is capable of constituting harassment under the Protection from Harassment Act 1987.
- The Plaintiff’s pleadings on trespass, harassment, and damages are sufficiently specific and relevant for proof.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Langskaill v Black 2023 SLT (SAC) 51 |
Where there is a discrepancy between a verbal description and a plan, it is a matter of circumstances and inquiry to determine which prevails. |
The court held that this precedent supported the need for evidence to resolve factual disputes about boundaries. |
| North British Railway Co v Hutton (1896) 23R 522 |
A bounding title excludes land expressly excepted; possession beyond boundaries cannot confer title by prescription. |
The court considered this principle in assessing whether the Plaintiff could acquire title to the disputed portion excluded by the 1986 disposition. |
| Drumalbyn Development Trust v Page 1987 SC 128 |
Proof is required to resolve disputes where it is unclear whether a fence conforms to a plan or the plan is incorrect. |
The court found the case factually analogous, endorsing the necessity of proof before answer. |
| Munro v Keeper of the Registers of Scotland LTS/LR/2016/05 |
Where a disposition contains a bounding description sufficient to identify boundaries, it is impermissible to contradict that by reference to a fence maintenance burden. |
The court noted this principle but held that whether the fence existed at the relevant time was a question of fact requiring evidence. |
| Suttie v Baird 1992 SLT 133 |
If land falls within a verbal description, the deed is habile to include it even if ultimately held to lie outside the boundary. |
The court considered this submission but deferred full consideration until after evidence was led. |
| Haberstitch v McCormick & Nicholson 1975 SC 1 |
Measure of damages for damage to property is fact-specific and requires evidence. |
The court noted the need for evidence to determine damages. |
Court's Reasoning and Analysis
The court identified multiple factual issues that could only be resolved through evidence, including the precise location of the boundary lines as described in the 1987 disposition (verbal description, plan, and exceptions), the existence and location of the mutual fence, and whether the cadastral map and title sheet accurately reflect the true boundaries.
The Defendants’ reliance on bounding titles and the Keeper’s Midas touch was insufficient to decide the case without proof, as the Plaintiff challenged the accuracy and manifest nature of the register and title boundaries. The court emphasized that questions of fact such as whether the disputed portion was included twice in dispositions, and whether possession had been established, required a hearing.
The court also considered the Plaintiff’s averments on trespass and harassment. It found that the Defendants admitted entering the disputed land and carrying out acts such as removal of a fence and trees, which, if the land belonged to the Plaintiff, would constitute trespass. The issue of fault was addressed by noting that deliberate acts without reasonable belief in entitlement suffice for liability. The harassment claims met the statutory definition of a course of conduct causing alarm or distress, with adequate specification of incidents and timing.
Overall, the court concluded that the Plaintiff’s pleadings on rectification, trespass, and harassment were sufficiently relevant and specified to justify a proof before answer.
Holding and Implications
The court REFUSED the Defendants’ motion to dismiss the action and ALLOWED a proof before answer to proceed, with all averments and pleas-in-law remaining extant.
The Plaintiff was found entitled to expenses occasioned by the procedure roll, having been entirely successful at this stage.
The decision means that the boundary dispute, including the rectification of the Land Register and claims for trespass and harassment, will be resolved after evidence is heard. No new legal precedent was established; the ruling primarily concerns procedural propriety and the necessity of proof to resolve factual disputes.