Summary of Opinion — Judge Lake (Outer House, Court of Session)

Factual and Procedural Background

The Plaintiff sought to install a mobile telecommunications mast as part of a Shared Rural Network project approximately half a kilometre from the First Defendant's home at [Number] Main Street in The City, adjacent to The Railway Line. The Plaintiff obtained planning permission and entered into arrangements with Company A (the owner of the land on which the mast was to be erected) allowing erection of the mast and access. Company A later granted the Plaintiff a lease regulating use of and access to the mast site. The Plaintiff also obtained access rights over land owned by Company B where necessary to reach the mast site. The access route crosses The Railway Line at a private level crossing situated roughly 600m from The Station and the Defendants' home.

The Plaintiff's summons averred that the Defendants obstructed the crossing (locking gates, parking vehicles across the track, erecting fences) and sought interdicts (including interim interdict), orders ad factum praestandum to require specified acts, and damages for loss caused by obstruction. The Defendants denied liability and counterclaimed. Their counterclaim sought (a) a compensation payment said to be due in respect of use of the crossing, (b) an order requiring the Plaintiff to enter into an access agreement with the First Defendant and make payments under it, and (c) (if the Plaintiff rejected the first two conclusions) interdict preventing the Plaintiff or agents from entering onto the crossing. The Defendants' case proceeded on the basis that the First Defendant owned the crossing; the Plaintiff did not make positive averments as to present ownership of the crossing but in reply stated that the railway had been conveyed in 1876 to a railway company. The Defendants put ownership of the crossing in issue.

Procedurally, there were multiple interlocutory steps. The case was sisted on two occasions to allow the Defendants to seek legal representation; the Defendants remained self-represented. Motions for absolvitor and other procedural relief were refused. The matter proceeded to a preliminary hearing and then to a debate fixed for July, at which parties lodged Notes of Argument. The court heard a two-day diet of debate; after submissions Judge Lake made avizandum and later heard and disposed of a further motion lodged by the Defendants following the debate.

Legal Issues Presented

1. Whether particular averments in the Defences and counterclaim that the First Defendant owns the solum (soil) of the private level crossing are relevant and should be put to probation (i.e., whether those averments survive a relevancy challenge).
2. Whether averments that the First Defendant can complete title to the crossing by lodging a Notice of Title (based on prior deeds) are relevant in the present pleadings.
3. Whether claimed "solum rights", mineral rights or servitudes relied on by the Defendants are a relevant defence to the Plaintiff's claims of interference with contractual rights of access.
4. Whether the Plaintiff lacks standing or title to challenge the Defendants' averments of ownership (the question of whether the Plaintiff may challenge the Defendants' title in the absence of title of its own).
5. The appropriate disposal of the pleadings and any counterclaim when parts of the Defendants' case are held to be irrelevant.

Arguments of the Parties

Plaintiff's Arguments

• The extent of the First Defendant's ownership under registered Title CTH7726 (Station House) is determined by the Land Register title sheet and title plan; those documents do not include the solum of the level crossing.
• The "curtain principle" means that registered titles are the starting and limiting point for establishing extent of ownership; it is generally inappropriate to go behind the register to prior deeds to assert additional land rights (citing May Fung Chung and BAM TCP Atlantic Square).
• The Defendants' statement that a Notice of Title is to be lodged is an admission that the First Defendant does not presently have a real right beyond what is shown on Title CTH7726.
• "Solum rights" are not a discrete separate interest apart from ownership of land; to claim solum ownership the First Defendant must identify title to the land in question.
• Claims that the First Defendant owns mineral rights over Company A's subjects do not appear on the title sheet and, in any event, would not entitle the Defendants to prevent access or works; minerals were not excepted from Company A's titles except where expressly reserved.
• The Plaintiff accepted the First Defendant has servitude rights of access but submitted those rights do not justify or permit the obstructive conduct alleged; servitude rights must be exercised civiliter and do not exclude others from exercising rights over the same land.
• The counterclaim lacks enforceable detail (no enforceable obligation to conclude an access agreement, no basis for the compensation sum) and cannot support specific implement against the Plaintiff.

Defendants' Arguments

• The core dispute is title to the private level crossing: the Defendants asserted that the First Defendant has title (or a valid legal title claim) to the solum of the crossing arising from a 1979 feudal disposition and subsequent conveyancing history and that he is entitled to complete title by lodging a Notice of Title, giving him a patrimonial interest.
• The Plaintiff lacks standing to challenge the First Defendant's title because the Plaintiff does not itself claim title to the crossing; the Defendants relied on authority they said supported the proposition that a party without title or a real right cannot challenge another's title.
• The Defendants argued that the Plaintiff may be acting as a proxy for Company C (Network Rail in the opinion) and should not be permitted to litigate the title dispute on behalf of a third party.
• The Defendants maintained they have extensive servitudes (pedestrian and vehicular access, rights related to water supply and drainage) and mineral rights; the alleged October 2023 conduct (erecting fences, blocking access) was justified by exigent circumstances (storm/flood, health and safety and need to access pipes) and was exercised civiliter.
• The Defendants asked the court either to dismiss the action for want of standing or to continue the diet to allow them more time to obtain legal advice and to present title challenges in the appropriate procedural form (including lodging a plea-in-law).
• The Defendants contended they should have a further debate to examine whether the Plaintiff had sufficiently pleaded any basis for asserting Company C's title to the crossing and to allow full examination of the factual and legal basis for title claims.

Table of Precedents Cited

Court's Reasoning and Analysis

Judge Lake conducted a structured analysis addressing procedural fairness, the scope of matters properly before the court at debate, the relevancy standard, the operation of the Land Register "curtain principle", and the legal mechanics of completing title by Notice of Title.

Fair hearing and procedural management

The court rejected the Defendants' submission that they were denied a fair hearing or equality of arms by the refusal to adjourn the diet. Judge Lake noted the Defendants had been given opportunities (including two prior sistings) to obtain legal advice, had lodged an extensive Note of Argument, and had been permitted to address the court despite being self-represented. The judge held that permitting parties to halt hearings at will to obtain further advice would risk injustice and delay; the court's refusal to continue the debate was within its discretion and not a breach of Article 6.

Scope of arguments at debate and relevancy standard

The court emphasised that the debate concerned relevancy: the judge was confined to the pleadings and documents incorporated in them. A debate is not a mini-trial; the court must not decide contested facts or assess evidence beyond those pleadings. The applicable test was whether averments were irrelevant (i.e., necessarily bound to fail) or not (citing Jamieson). The judge explained that allowing late, unforeshadowed arguments would be unfair to the Plaintiff and would undermine case management; the Defendants could, in future, put the Plaintiff to proof on entitlement to use the crossing.

Title, the curtain principle and Notices of Title

The court accepted the general force of the curtain principle for registered titles: the registered title sheet and plan ordinarily determine the extent of ownership (May Fung Chung; BAM). The court nonetheless recognised that the curtain principle "has limits" where an assertion is made that land not registered to a party in fact belongs to them and they seek to complete title by a Notice of Title. A Notice of Title requires a "midcouple" linking the last person infeft to the applicant; examples include court orders or other instruments effecting transfer. The Defendants' pleadings and submissions did not identify any midcouple or other operative link transferring title in the crossing solum from earlier disponees (e.g., the 1979 disponee) to the First Defendant. The plan annexed to the 1979 Disposition appeared to show the railway passing between two delineated parts and did not on its face include the solum of the railway, and the written recital in the 1979 deed conveyed "such rights as I may have", which does not establish ownership as a matter of law on the pleadings. Determining whether the 1979 Disposition in fact included the crossing or whether a midcouple exists would require evidence and could not be resolved on relevancy at debate.

Solum and mineral rights arguments

The court held that the Defendants' averments asserting present ownership of the solum under registered Title CTH7726 were plainly inconsistent with that title sheet and plan and were therefore irrelevant. The Defendants' alternative contention that prior deeds conferred "solum rights" that could be completed by Notice of Title was also irrelevant because the pleadings did not identify the necessary midcouple or link in title. Similarly, averments of mineral rights were not shown by the pleaded title sheet(s) and, even if minerals were owned, such ownership would not, on the pleadings, justify the obstructive acts alleged or prevent access; the court therefore held those averments to be irrelevant.

Servitude rights

The court accepted there was no dispute that the First Defendant claimed servitudes (pedestrian/vehicular access, rights relative to water supplies) and reiterated the legal principle that a benefited proprietor must exercise servitude rights civiliter (Alvis). Whether the First Defendant's conduct during the events of October 2023 constituted a civiliter exercise was fact-sensitive and could not be disposed of on relevancy grounds at the debate.

Standing / title to challenge

The court rejected the Defendants' submission that the Plaintiff lacked standing to challenge the Defendants' averments unless the Plaintiff first established title. Judge Lake reasoned that precedent relied upon by the Defendants (GCN, Mather, Douglas & Angus) did not support the proposition that a party without title or interest could never challenge a defender's claim to ownership; notably many parties (tenants, holders of servitudes) may legitimately seek relief without owning the land. In the present case the Defendants themselves raised title as a defence; the Plaintiff was entitled to resist and to challenge the relevancy of those averments. The court explained that the proper place to litigate title or to put the Plaintiff to proof would come later if the Defendants lodged appropriate pleas or led evidence; absence of a plea-in-law limited the Defendants' ability to have an off-hand title dispute resolved at the debate.

Counterclaim and conclusions

Because the counterclaim proceeded on the basis that the First Defendant owned the solum of the crossing and because the pleadings and submissions failed to establish present registered ownership or a viable means to complete title (via Notice of Title with an identifiable midcouple), the court found the averments concerning present ownership and the asserted alternative route to ownership irrelevant. As a consequence the court held that the counterclaim was irrelevant and dismissed it.

Holding and Implications

Core Ruling

PLEAS IN LAW SUSTAINED; COUNTERCLAIM DISMISSED

Details of the holding

• Judge Lake sustained the Plaintiff's first plea-in-law, striking out as irrelevant the averments in the Defences that the First Defendant presently owns the solum of the private level crossing under the registered Title CTH7726 and other averments that sought to rely on prior deeds to establish present ownership without identifying the required midcouple.
• Judge Lake sustained the Plaintiff's second plea-in-law (as amended) and dismissed the Defendants' counterclaim in its entirety on the ground that the counterclaim proceeded on those irrelevant averments of ownership.

Immediate consequences and further procedure

• The interlocutor of the same date will specify the averments struck out. The counterclaim has been dismissed.
• The case is to be put out for a By Order hearing (to be treated as a Procedural Hearing) in Edinburgh to determine further procedure, expenses motions and other outstanding motions. Parties must attend or be represented in person.
• Three days prior to that hearing parties must lodge a Note setting out (i) issues remaining to be determined, (ii) names/addresses of witnesses and summaries of their evidence, (iii) further investigations or preparations sought, and (iv) further orders sought and written submissions in support.
• Judge Lake observed that the decision is directed to case management and the relevancy of specific pleaded averments; it does not constitute a final adjudication on who owns the solum of the crossing. Determination of title (if required) will involve evidential proof and appropriate pleadings and was not resolved at this debate.

Note: The opinion does not announce any novel legal principle; its holdings apply the established curtain principle, the requirements for a Notice of Title (including midcouple), and the standard of relevancy at debate. The practical effect is the striking out of the Defendants' pleaded basis for asserting present ownership of the crossing and the dismissal of the counterclaim that depended upon that basis.