Scottish Court of Session Decisions

[1] The pursuers bring this action as assignees of a company McConnell Properties Limited - "McConnell" - who in June 1995 offered to purchase from the defenders an area of ground extending to 28.62 acres at Nettlehill Road, Livingston. The offer was in due course accepted and a contract concluded and with a view to implement of that contract the defenders on 29 June 1995 executed and delivered to McConnell a disposition - "The McConnell Disposition" - of an area of land at Nettlehill Road. McConnell thereafter entered into possession and began to carry out certain building works. It is averred by the pursuers that in March 1996 a company, Morrison Developments Limited - "Morrison" - objected to certain of those works on the basis that the works encroached on land owned by Morrison. Having satisfied themselves that Morrison did own the land upon which the alleged encroachment had occurred McConnell entered into negotiations with Morrison and those negotiations resulted in McConnell purchasing from Morrison a strip of ground - "The Morrison Strip" - some 23.5 metres in width and approximately 220 metres long. The Morrison Strip was conveyed by Morrison to McConnell by a disposition dated 28 March 1996.

[2] The amount paid by McConnell to Morrison for the Morrison Strip along with amounts expended on legal fees and other outlays incurred by McConnell in connection with their purchase of the Morrison Strip form the principal components of the sum which the pursuers, as assignees of McConnell, claim as damages from the defenders in this action. The foundation of the claim for damages is the clause of absolute warrandice contained in the McConnell disposition, the contention for the pursuers being that McConnell suffered partial eviction from the ground conveyed to McConnell when Morrison asserted their ownership of the Morrison Strip.

[3] A prerequisite for such a claim, under a clause of warrandice, for damages for partial eviction is of course that the area from which the claimant was evicted was included within the land which the conveyance containing the warrandice bore to convey. In the present case, and at this stage in the proceedings, the issue between the parties is whether the McConnell disposition bore to dispone the land contained within the Morrison Strip.

[4] The Morrison Strip formed part of a larger area of land, approximately 10 acres in extent, acquired by Morrison by a disposition in their favour from Cameron Ironworks Limited dated 14 November 1991 and recorded in the Register of Sasines on 26 November 1991. The subjects of that disposition - "the Morrison Disposition" - are shown demonstratively on a plan annexed to it and they are described within the disposition by detailed boundaries, with measurements, some of which are related to a roadway, Nettlehill Road, and a fence running alongside it. It is averred by the pursuers, and not disputed by the defenders, that the Morrison Disposition contained a bounding description and that it was possible to locate precisely the south-western boundary of the Morrison ground. That part of the Morrison ground which has been referred to as the Morrison Strip lies directly adjacent to that south-western boundary of the Morrison ground.

[5] The subjects of the McConnell Disposition are described in the dispositive clause of that disposition in these terms:-

[6] The copy of the McConnell Disposition in process (number 6/3) has no plan annexed to it. Although not docquetted as being the plan referred to the in the McConnell Disposition and not admitted by the defenders as being a copy of that plan, counsel were agreed that for the purposes of the debate the copy plan (number 6/9 of process) produced by the pursuers might be assumed to be a copy of the plan annexed to the McConnell Disposition.

[7] As is apparent from the description of the subjects in the McConnell Disposition their shape is approximately rectangular, the two longer sides of the oblong being oriented towards to the north-west and south-east respectively with the two shorter sides facing to the north-east and south-west respectively. From what is averred by the pursuers it appears that the distance between the two shorter facets, that is to say the distance between the boundary of the Morrison ground to the north-east and the boundary of the Livingston Development Corporation property to the south-west, when measured on the ground, is approximately 23.5 metres shorter than the lengths (523.43 metres and 522.64 metres) indicated on the plan and stated in the disposition respecting the longer sides of the oblong. The defenders do not admit that the distance between the two shorter sides of the oblong is thus less than the distance stated in the disposition but for the purposes of debate such is assumed to be the case; and it is also to be assumed that the superficial extent is consequently somewhat smaller than 28.62 acres.

[8] The defenders maintain that the action, based on the warrandice clause, is irrelevant because the McConnell Disposition, properly construed, does not bear to convey any part of the Morrison ground, and in particular the Morrison Strip, to McConnell.

[9] Mr MacLean, who appeared for the defenders, submitted that the description of the subjects conveyed in the McConnell Disposition was a bounding description, the boundaries being described by reference to the surrounding properties and the titles under which they were held. In the case of the frontage to the Morrison ground, the title was specified as being the Morrison Disposition, which stated precisely the extent of the Morrison ground and fixed its location. Mr MacLean pointed out that the pursuers admit that the Morrison Disposition constitutes a bounding title, from which the south-west boundary of the Morrison ground can and could be precisely located. The McConnell Disposition described its subjects as bounded by the land contained in the Morrison Disposition and accordingly thereby excluded any part of the ground contained within the Morrison Disposition.

[10] In support of his proposition that the McConnell Disposition constituted a bounding title, counsel referred to Reid v McColl (1879) 7 R 84 and in particular to the discussion in the opinion of the Lord Justice Clerk (Moncrieff), at p. 90, and Lord Ormidale at p. 92. He submitted that for a title to be a bounding title it was not necessary that the property be defined by some physical feature on the ground, provided the boundary be specified and identifiable. So, if a property be described as bounded by land owned by another and the extent of that land owned by the other is identified, the title will, as respects that boundary, be a bounding title. Although in Reid v McColl Lord Gifford expressed certain difficulties he did not dispute the principle and did not dissent from the result. While reservations have been expressed elsewhere concerning certain aspects of Reid v McColl and it had been described in Young v John C. McKellar Limited 1909 SC 1340 as a special case, in the relatively recent decision of Suttie v Baird 1992 SLT 133 the Lord President (Hope) had quoted from the opinion of Lord Justice Clerk Moncrieff without adverse comment. Counsel further submitted that the discussion in Young v McKellar Limited respecting the nature and effect of a bounding title was strictly obiter, the case having in fact been decided on the terms of the articles of roup there in question. In so far as Young v McKellar Limited might be inconsistent with what had been stated and held in Reid v McColl the latter should be preferred. Counsel referred to Currie v Campbell's Trustee (1888) 16 R 237 a further example of a bounding title, the subjects there in issue also being described as bounded by other defined subjects. Counsel pointed to the observation by Lord Rutherfurd Clark, 241, in which his Lordship stated that he took it to be settled law that what is described as the boundary of a feu in the feu-disposition which creates it is by that very fact excluded from the feu. In North British Railway Co Limited v Hutton (1896) 23 R 522 it was held that a conveyance of land under excepted subjects, the latter defined in a bounding description in the deed conveying them away, resulted in a bounding title in the remaining subjects, the line between the remaining and the excepted subjects being defined in the title deed of the excepted subjects. By analogy, in describing the present subjects as bounded by the ground conveyed and defined in the earlier Morrison Disposition the McConnell Disposition was effectively excepting those from any conveyance to McConnell.

[11] Counsel for the defender went on to submit that where a boundary was thus clearly described it would prevail in the event of conflict with the measured distances or superficial extent (Currie v Campbell's Trustees). In so far as it was contended that the plan (16/9 of process) showed the subjects of the McConnell Disposition as extending into the Morrison Strip (which counsel was prepared to assume albeit that there were difficulties, he said, in so interpreting the plan) it was clearly stated in the McConnell Disposition that the plan was demonstrative only and not taxative. If merely as a matter of conveyancing practice, it was well recognised that a plan described as demonstrative only was subordinate to the verbal description contained in the deed itself - Gretton and Reid on Conveyancing (Second Edition) 12.14; McDonald's Conveyancing Practice (6^th Edition) 101.

[12] It accordingly followed from a consideration of the titles themselves that the McConnell Disposition was not habile to convey any part of the Morrison Strip. It therefore could not be said that the pursuers' cedents had suffered partial eviction. The action was accordingly irrelevant.

[13] In her response Mrs Wolffe, who appeared for the pursuers, challenged the defenders' central contention that the McConnell Disposition contained a bounding description which excluded the Morrison Strip from its subjects. There was, she said, a distinction between a "description of property by boundaries" and a "bounding description". She accepted that if there were a bounding description acquisition of title by prescriptive possession beyond the limits so defined would not be possible. However, it was also possible to describe a boundary with insufficient precision to enable it to operate as a bounding description. It was accordingly not enough, for a bounding title, simply to describe a property as "bounded by the lands of x". With a view to elaborating and supporting this proposition, counsel referred to the explanation given by Trayner of the Latin expressions ager arcifinius and ager limitatus respectively, to which expressions reference had been made in the opinion of the Lord Justice Clerk in Reid v McColl. In drawing a distinction between a general description and a bounding charter Erskine (II, 6, 2) referred to the latter as one which "points out the limits of the ground by march-stones, the course of a river, or other obvious and indubitable boundaries". Bell's Dictionary defined a bounding charter as "A charter or investment which describes the lands by their meaths or marches. Such a description confers right to all within the bounds, and, on the other hand, excludes what lies beyond. No prescription can confer right to that which is without the boundary, as part and pertinent". Counsel then referred to the entry for "marches" in the same dictionary and to the entry for "meaths" in the Concise Scots Dictionary (AUP). Counsel submitted that in all those authorities stress was placed on the presence of physical features on the ground as marking the boundary. She then made further reference to the discussion in McDonald's Conveying Practice of a "particular description" at para. 8.13 (2) and to what was said in Gordon on Land Law at para. 4.07, which, counsel accepted, acknowledged that a bounding description was not confined to the use of natural or artificial boundary marks on the ground but might also result from the appropriate use of measurements or reference to plans.

[14] Adverting more specifically to the proposition that a bounding description was not constituted simply by a statement that the property was bounded by the lands of another, counsel referred to Troup v Aberdeen Heritable Securities Co 1916 SC 918 and in particular the opinion of Lord Salvesen, 927, in which his Lordship indicated that such a description would not be a bounding description. The decision in Reid v McColl was special in its facts in the respect that, while the properties in question were described as simply being bounded by each other, the lie of the land, the natural arrangement of the properties and the existence of evidence of the setting of a march-stone were adverse to the contention for the defender in that case that his title was habile to permit prescriptive possession of the L-shaped area in issue. Setting aside those special facts, the example given by Lord Justice Clerk Moncrieff, p.90, foot, of the conveyance of a house in Charlotte Square bounded by its neighbours on one side and its neighbour on the other was more properly an "Erskine" type example of reference to physical boundary marks. In Currie v Campbell's Trustee the particular feature relied upon was a physical one, namely the wall of a house. Counsel further submitted that it was necessary to look at all of the boundaries and in that connection referred to the short report in Stewart &c v Greenock Harbour Trustees (1866) 4 M 283. Young v McKellar Limited supported the proposition that a reference to a boundary consisting of property possessed by another was not a bounding title; and it should be followed in preference to Reid v McColl.

[15] In light of those authorities Mrs Wolffe submitted that the employment in the McConnell Disposition of language to the effect that the subjects conveyed were bounded by the property contained in the Morrison Disposition was not delimitative and the Court required to look at all elements of the description. There were cases in which measurements were preferred to elements in the verbal description. In this connection counsel referred to Gordon on Land Law para. 4-08 and North British Railway Co Limited v Moon &c (1879) 6 R 640. Reference was also made to the sheriff court decision in Anderson v Harrold 1991 SCLR 135. Where the other descriptive elements were unclear, measurements within the dispositive clause would be preferred. Further, the pursuers might pray in aid the plan in so far as it was consistent with the measurement. Simply because it was described as "demonstrative" that did not mean that it fell to be totally disregarded. Counsel also referred to Sim v Stewart (1827) 5 S 840.

[16] Counsel for the pursuers also submitted that since the description contained in the McConnell Disposition was thus not a bounding description, it was not only appropriate to refer to the measured distances and the plan as indicative of an intention to convey the Morrison Strip but that it also followed that the averments made by the defenders to the effect that the McConnell Disposition contained such a bounding description were irrelevant and should be deleted.

[17] As will be evident from the foregoing summary of the respective submissions for the parties, the primary issue debated was whether the McConnell Disposition constituted a bounding title and a good deal of that discussion concerned the meaning and usage of the term "bounding title".

[18] The broad distinction between a conveyance of land by a general description and a conveyance of land by a bounding description which is discussed in, among other authorities, Erskine II 6, 2 and the opinion of the Lord Justice Clerk in Reid v McColl is, I think, fairly clear. In the former type of description, where the land is simply referred to by a name such as "the lands of Blairhill", perhaps also with a reference to present and former possessors of it, the extent of the land requires to be established, if need be, by proof of possession by or on behalf of the proprietors of land owned by that name. I would observe that in an era before the enclosure of agricultural land and the development of cartographical skills and the advent of the ordinance survey maps, one can perhaps understand the practical attraction for a conveyancer of conveying by such a general description. It may further be observed that conveyance by general description had the possible advantage that the absence of stated limits facilitated the acquisition of territory by possession for the prescriptive period. By contrast to conveyance by general description, the "bounding charter" endeavoured to set the limits of the subjects by describing those limits and a consequence of the setting of the boundary was that the conveyance would not be habile to permit prescriptive possession and acquisition of land outwith its defined bounds. I would make the further observation that in an earlier era such as that to which I have just referred, it was perhaps difficult to describe boundaries other than by reference to physical features such rivers or artificial features such as march-stones (and as respects march-stones it appears to have been thought necessary at one time to take steps to ensure oral testimony of their setting - see Stair (IV, 43, 7). At all events, whether my observation be sound or not, in my opinion it is clear that, as stated by the Lord Justice Clerk in Reid v McColl, in order to constitute a bounding title it is not necessary that the boundary in question be some physical feature or demarcation on the ground itself. An imaginary geographical line, if specific and certain, is sufficient. Gordon on Land Law, para. 4.07, similarly recognises that the use of measurements, statements of superficial area, or reference to a plan may constitute a bounding description, limiting the lands owned.

[19] However, while one may frame a conveyance, not by a general description, but by what bears to be a bounding description in the sense that it describes the boundaries of the property conveyed, in his description of one (or more) of the boundaries the framer of the conveyance may yet fail to achieve sufficient precision to enable that boundary to operate in a manner excluding recourse to proof of prescriptive possession in a question with a neighbouring proprietor. Thus, by way of example, in Suttie v Baird it was clear that in framing the titles to the two houses in issue in the housing development at Dalgety Bay, the conveyancers set out to describe in detail the boundaries of each of the two detached dwellings. In the event, for the reasons explained in the report of the decision, in their description of the mutual boundary the conveyancers failed to impart to it sufficient precision and accuracy to exclude the need for inquiry into the state of possession. The matter was put thus by the Lord President at 136 D-F:-

[20] Accordingly, within what bears to be a conveyance by a bounding, and not a general description, one may find that one or more of the boundaries is not sufficiently described as to prevent ultimate recourse to possession as the measure of the extent of ownership.

[21] A particular instance in which the description of a boundary may fail to obviate recourse to evidence of possession as the ultimate measure of ownership is where the subjects are described as simply being bounded by a neighbouring property. Such an instance is explained by Lord Salvesen in his opinion in Troup v Aberdeen Heritable Securities and Investment Co Limited (927):-

[22] It also appears to me that Young v McKellar Limited was a similar such case, the title having described the subsequently disputed boundary as being "ground belonging to [the trustees] for Hillhead Baptist Church" without any further indication of the extent of the neighbouring property or the means whereby it might be ascertained. I would further observe that, respecting Reid v McColl, the point of difficulty apparently leading to Lord Gifford's hesitation appears to be whether the neighbouring title (the defenders' title) was sufficiently precise to be a bounding title in the proper sense, thereby excluding the neighbour's (the defenders') ability to claim prescriptive possession of the area in dispute. Given resolution of that difficulty in the manner favoured by the majority (the Lord Justice Clerk and Lord Ormidale) - namely that the neighbouring title was indeed a bounding title in that sense - the principle appears not to be in doubt.

[23] In light of the foregoing, I am in no doubt that, in the present case, the McConnell Disposition employed a "bounding description", rather than a "general description", in the respect that it plainly sought to define the boundaries of the subjects conveyed. Consonant with the approach or analysis exemplified by the decision in Suttie v Baird the question then becomes whether the north-eastern boundary of the subjects disponed by the McConnell Disposition was described with sufficient precision as to be limitative or bounding in the sense of excluding reference to the history of the state of possession as the test of the extent of heritable right.

[24] In that regard it is, in my opinion, of notable importance that the terms of the bounding description in the McConnell Disposition are not terms which make bald reference to the subjects' being bounded by the property of others without further specification of that ownership or its extent. The McConnell Disposition refers specifically to the Morrison Disposition, previously recorded in the Sasine Register. It is in my view perfectly competent to create a bounding title stricto sensu by express reference to the title of a neighbouring property where that title contains, as such, a bounding description in that sense. That is, I believe, the proper analysis of Reid v McColl although in that case reliance was placed, perhaps controversially, on extrinsic features such as the natural lie of the properties. But on this aspect of the present case, I regard North British Railway v Hutton to be equally, if not more, in point. While that case involved the definition of the extent of property by reference to a wider area from which other subjects had been earlier disponed and was thus, in conveyancing terms, a disposition subject to exception, it is I think no different from a case in which the disponer defines the extent of the ground which he is disponing by reference to the published, defined extent of the neighbouring property. In North British Railway v Hutton Lord McLaren, in whose opinion the other members of the court concurred, said:-

[25] As I have previously narrated, it is accepted by the pursuers that the Morrison Disposition, to which the McConnell Disposition expressly refers, was one which contained a bounding description whence it was possible to locate precisely the south-western boundary of the Morrison ground. Armed with the information contained in the Morrison Disposition, published in the Sasine Register, one could therefore readily ascertain the boundary of the Morrison ground to which the McConnell Disposition referred. In these circumstances I consider the defenders' contention that (respecting the disputed north-eastern boundary) the dispositive clause of the McConnell Disposition contained a bounding description, stricto sensu, to be correct.

[26] Plainly the terms of a plan expressed to be demonstrative and not taxative do not prevail against the terms of the written description, where the written description incorporates a reference to the precise terms of the title of the neighbouring property and thus constitutes a bounding title stricto sensu. In my view it also follows that the, assumedly, erroneous measurements within the terms of the McConnell Disposition do not prevail against the terms of the bounding nature of the north-eastern boundary. I would simply add that the argument for the pursuers appears to assume that the boundary from the south-western side (with Livingston Development Corporation) was fixed, in consequence of which the stated measurements required that the property conveyed must extend into the Morrison ground. Accordingly, so ran the argument, those measurements should prevail and give purported title to the Morrison Strip. But since the boundaries of the Morrison ground were, as the pursuers admit, readily ascertainable from the published titles and thus equally fixed, the same argument would apply in the other geographical direction. That, in my view, simply demonstrates that the invocation of the precise measurements in the McConnell Disposition is misplaced where the external boundaries are thus fixed by reference to the defined neighbouring properties.

[27] In short, while it may possibly be that there have been errors or blunders in this particular sale and conveyancing transaction, I do not consider that there is ground for reflecting ultimate responsibility for those possible errors in a claim for damages under the warrandice clause contained the McConnell Disposition. I shall therefore uphold the defenders' submissions, and their first plea-in-law, thereby dismissing the action.