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Safeway Stores Plc v. Tesco Stores [2003] ScotCS 171 (06 June 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Osborne

Lord Hamilton

Lord Kingarth

XA124/01

OPINION OF LORD OSBORNE

in the Appeal to the Court of Session under Section 11 of the Tribunals and Inquiries Act 1992

SAFEWAY STORES plc

Appellants;

against

a decision of the Lands Tribunal for Scotland, dated 4 May 2001 and intimated to the appellants on 8 May 2001

and

TESCO STORES LTD

Respondents;

_______

Act: Murphy, Q.C.; Archibald Campbell & Harley (for Safeway)

Alt: Martin, S.P.L. Wolffe; Brodies (for Tesco): Hodge Q.C., Crawford; R. Henderson (for Keeper of the Registers)

6 June 2003

The background to the appeal:
[1] In this appeal on a point of law, under section 11 of the Tribunals and Inquiries Act 1992, the appellants appeal against a decision of the Lands Tribunal for Scotland, hereinafter referred to as " the Tribunal", dated 4 May 2001 and intimated to the appellants on 8 May 2001, in which the Tribunal ordained the Keeper of the Registers of Scotland, hereinafter referred to as "the Keeper", in terms of section 9(1) of the Land Registration (Scotland) Act 1979, to rectify the Land Register of Scotland, hereinafter referred to as "the Register", (first) in respect of Title Sheet Number REN93746 by deleting from the Proprietorship Section the exclusion of indemnity set out under Note 2 therein, and by removing the blue tint from the Title Plan; and (second) in respect of the Title Sheet Number REN56654 by removing from the registered extent (Title Plan) that plot or area of land lying to the south of the medium filum of, and to the east of the footbridge over, the White Cart Water. The decision in question followed an application to the Tribunal by the respondents for an order requiring the Keeper to rectify the Register in the respects contended for and a related appeal under section 25 of the 1979 Act against a decision of the Keeper refusing to make the rectification sought. That application was opposed by the appellants; the Keeper resisted the appeal, but took a neutral position in relation to the application.

[2] The appellants are currently proprietors of extensive subjects known as the Anchor Mills site at Lonend, Paisley registered under the Title Sheet Number REN56654. There is no qualification of indemnity in relation to this title. These subjects lie within a wide loop of the White Cart Water. One part of the subjects, including the footbridge and an area immediately to the west of it, extends to the southern bank of the river. For the most part, however, the boundary on the south, west and north is the centre line of the river. The present dispute arises out of the fact that the Title Sheet Number REN56654 shows the south boundary of the subjects immediately to the east of the footbridge over the river on a line which is some 2 metres to the south of the centre line. The respondents are currently proprietors of subjects at Lonend, Paisley, which are registered under the Title Sheet Number REN93746. These subjects comprise a narrow irregularly shaped area of land lying to the south side of the White Cart Water and including part of the alveus of the river. It is bounded on the west by the east edge of the footbridge across the river. These subjects, as currently shown on the Register, extend on their north side to the centre line of the river. The northern boundary is about 5 metres long. They have been registered under express exclusion of indemnity. It will be apparent from what has already been said that, to the east of the footbridge mentioned, there is an overlap of titles REN93746 and REN56654. A small area in the middle of the river, immediately to the east of the footbridge appears in both titles. I shall refer to this area as "the overlap area."

[3] It is not a matter of dispute that the original Title Plan REN56654 did not include the overlap area. The boundary at the relevant point was initially and correctly shown as the centre line of the river. It is common ground that the current Title Plan, in one sense, is inaccurate. That inaccuracy results from the fact that, in about July or August 1997, the plan indicating the extent of the registered title REN56654 was altered, consequent upon the conversion of the map base to a digital electronic form. This error occurred internally in the Keeper's office. Unsuccessful attempts have been made to determine precisely what happened and when. It is clear that the Title Plan was revised and that that revision was consequent upon a change to the Ordnance Survey map base. As a result of this revision, the relevant part of the southern boundary of the subjects was shown on the Title Plan to lie some 2 metres south of the centre line of the river. The Title Plan, as held by the Keeper, is now in electronic form. There is nothing to suggest that anyone was aware that there had been a change to this boundary at the time when it occurred. It was common ground before the Tribunal that the inaccuracy described could not be rectified if rectification would "prejudice a proprietor in possession", within the meaning of section 9(3) of the 1979 Act. The main issue for the determination of the Tribunal was whether, in the particular circumstances of the case, the appellants were "proprietors in possession" of relevant subjects and, if so, whether rectification would be to their "prejudice".

[4] In this appeal, the appellants have tabled a number of grounds of appeal, which, after amendment, stand in the following terms:

"1 The Tribunal erred in law by treating the issue of possession as a competition between Safeway and Tesco whereas the true issue to be addressed was whether or not Safeway was a proprietor in possession for the purposes of section 9 of the Land Registration (Scotland) Act 1979 ('the 1979 Act'). The Tribunal erred in law by adopting an approach apt for determining possession in the context of establishing a prescriptive right.

2 The Tribunal erred in law by identifying the critical focus for evidence of possession for the purposes of section 9 of the 1979 Act as restricted to the 'overlap area' rather than as encompassing all evidence relating to the land contained in the appellants' Title Sheet. The Tribunal therefore erred by excluding from consideration relevant and competent evidence of possession.

3 That, in any event, the Tribunal erred in law by holding that the evidence led in relation to the 'overlap area' was insufficient to amount to possession for the purposes of section 9 of the 1979 Act. In considering the requirements for possession in relation to corpus the Tribunal has given insufficient weight to the nature of the 'overlap area' being a small part of a river bed."

In addition it should be mentioned that the respondents have tabled a cross appeal, in which the single ground of appeal is stated as follows:

"The Tribunal erred in law by finding that a registered interest in particular land can be created solely by the placing of a boundary on a plan by the Keeper without his having received any application by any person for the registration of an interest in that land separatim by any person who had acquired or intended to acquire an interest in the land."

The submissions of the parties:
[5] When this appeal came before us, senior counsel for the appellants stated that, if the court found ground of appeal 3 well founded, the appeal should be allowed by the sustaining of pleas-in-law 2 and 3 of the appellants and recall of the decision of the Tribunal. If the court considered that either of grounds of appeal 1 and 2 were well founded, the decision of the Tribunal should be recalled and the case remitted back to them to proceed as accords. Prior to setting forth his submissions, senior counsel for the appellants sought to focus the matters which were in dispute. First, it was not disputed, he said, that the Tribunal were entitled to hold that the appellants were a "proprietor" in terms of section 9(3) of the 1979 Act, as they had done in their decision at page 34J to K in the report of it, which was conveniently to be found in the Scots Law Times (Lands Tribunal) Reports, 2001 starting at page 23. It was subsequently stated by counsel for the respondents that this proposition was disputed. Secondly, it was not disputed that the Tribunal were entitled to hold that, if the appellants were a "proprietor in possession", in terms of section 9(3) of the 1979 Act, they would suffer prejudice if rectification were to take place, as appeared from page 38K to L of their decision. Thirdly, standing these circumstances, the question was whether the appellants were "a proprietor in possession" in terms of section 9(3) of the 1979 Act. That question had to be answered as at the time when the Keeper had been asked to rectify the register, or, if not at that time, when he had decided to do so. Thus the appeal was essentially concerned with the understanding of the Tribunal of the concept of "possession", for the purposes of section 9(3) of the 1979 Act. In this connection three particular issues arose: (1) what was meant by "possession" in section 9(3) of the 1979 Act; (2) what it was that had to be possessed; and (3) what were the requirements to establish "possession", having regard to the fact that what was involved in the present case was an area of river bed and that the appellants were a corporate body.

[6] Senior counsel for the appellants next set forth nine submissions. First, the 1979 Act established a system of land registration distinctive to Scotland. Accordingly, the term "possession", used in section 9(3) was to be understood by reference to the law of Scotland, rather than similar provisions of the law of England. Secondly the term "possession" in section 9(3) of the 1979Act included civil possession; accordingly a corporate personality could establish possession by virtue of the actings of employees and agents. Thirdly, "possession" under section 9(3) of the 1979 Act required an act of the mind and an act of detention; once acquired, possession was maintained by an act of the mind alone, animo solo. Fourthly, in considering the requirements to be met to establish possession, regard had to be had to the nature of the thing to be possessed. Only possession of the character of which the thing possessed was capable could be expected. Fifthly, in general, the extent of heritable property possessed was measured by reference to fixed boundaries. Either these were specified in the title or they were established by prescriptive possession. In the present case, the Title Sheet in the Register could be equiparated to a bounding description. Sixthly, where boundaries were specified in a title, as here, possession of the part amounted to possession of the whole. To evaluate each boundary, as understood at common law, would be to go behind the Register and to undermine the principle of guaranteed title and the faith of the record. Seventhly, the correct approach to section 9(3) of the 1979 Act was to ask, on the hypothesis that the respondents had applied for rectification, were the appellants a "proprietor in possession". That was the only question arising here. It would be erroneous to have regard to the actings, public or otherwise, of the respondents relative to the appellants and to adjudicate between them, as if judging a competition. The question was not who was in possession; it was, were the appellants a "proprietor in possession" of the registered interest in land. Eighthly, the Tribunal therefore erred by excluding all evidence in relation to the appellants' development site, other than that bearing directly on the overlap area, in determining the issue of possession. In this connection reference was made to pages 34L to 35L of the decision of the Tribunal. Ninthly, in any event, having regard to the nature of the subjects, the evidence of animus, the proposed physical use of the river bed and the actual use of it by surveying techniques directly related to the overlap area, there was sufficient evidence to show that the appellants were "a proprietor in possession". The drafting of plans to take advantage of the overlap area was a physical act in relation to the overlap area.

[7] Senior counsel for the appellants next turned to consider the findings-in-fact made by the Tribunal, to be found between pages 23 and 28J of their decision. He stated that he had no qualms about those findings, in general. He then drew our attention to the detailed features of the appellants' registered title. As regards the southern boundary, in the first instance it had run along the medium filum of the river in a westerly direction towards the footbridge. It then ran down the eastern side of that bridge, subsequently running along the southern bank of the river. Thereafter it resumed its course in a westerly direction along the medium filum. That had been the state of the title in October 1984. The appellants had acquired their right by virtue of a disposition by Michael Anthony Johnston in their favour dated 30 September 1997, the mill building itself having been excluded. By that time, ex facie of the Register, the error had already occurred in REN56654. The error could be observed in the land certificate, No. 4 of the appellants' inventory of documents, which showed a registration date for the appellants' title of 8 October 1997. Senior counsel for the appellants next referred to the respondents' title. This had had its origin in a disposition a non domino for the purposes of prescription, dated 4 July 1997, which was No. 52 of the appellants' inventory of documents. That had been succeeded by a further disposition of the subjects, dated 23 December 1997, No. 42 of the appellants' inventory of documents. The respondents had obtained their right to the subjects by a further disposition of even date, No. 41 of that inventory. The respondents' land certificate was No. 39 of the same inventory. It showed the boundary of the overlap area, which had been excluded from the respondents' title. It had a registration date of 14 May 1998. It was consistent with the land certificate, already referred to, No. 4 of the appellants' inventory of documents. Subsequently a change had been made, as could be seen from the Title Sheet of the respondents, No. 51 of the appellants' inventory of documents. This was the same Title Sheet as No. 39, but there was a perceptible difference. The overlap area was shaded in blue. The Keeper, on the basis of representations by the respondents concerning the ownership of the overlap area, had altered the land register by including the overlap area in the respondents' title, as well as leaving it in the Title Sheet of the appellants. That had been done upon the basis of representations made by the respondents. The relevant Title Sheet had retained 14 May 1998 as the date of registration, but the certificate issued on 9 December 1999, bore that the Title Sheet had been updated to 19 October 1999. Note 2 in section B of that certificate, relating to the part tinted blue on the Title Plan set out the perceived problem, which resulted in exclusion of indemnity.

[8] Senior counsel for the appellants then proceeded to consider where, he submitted, the Keeper had gone wrong. The origin of the problem was described at page 24J to L in the Tribunal's decision. The Title Plan relating to the appellants' title, No. 38 of their inventory, dated 21 October 1997 showed the position as it had then been with the medium filum as the boundary. However, following upon the digital conversion of the map base, an office copy of the Title Sheet dated 16 March 1998 had been issued, a copy of which was received by engineers acting on behalf of the appellants on 15 June 1998. That had resulted in suspicions being aroused, since measurements had indicated that the overlap area was included in the appellants' title. An office copy of the Title Sheet obtained by the appellants' solicitors on 22 June 1998, No. 3 of their inventory, confirmed these suspicions. The practical significance of that was considerable, since the availability of that area meant that it would have been possible for the appellants to build a straight bridge, as opposed to a more expensive curving bridge, to obtain access to their property, which was to be developed. The appellants' position was that that change occurring in the Keeper's office had resulted in the appellants coming to be in civil possession of the overlap area when they knew that they held it as proprietor. The appellants' consulting engineers, Halcrow Crouch, had been able to design a straight bridge in consequence of the availability of the overlap area, as appeared from the letter dated 20 July 2000, No. 4 of the appellants' second inventory of documents. It had been the receipt by the appellants' engineers of the Title Plan by 15 June 1998 that created the animus necessary for civil possession. These matters were the subjects of findings in fact by the Tribunal at page 26D to L of their decision. The Tribunal went on to find as fact what was subsequently done. Plans for a straight bridge, details of which could been seen from document No. 37 of the appellants' inventory of documents, had been prepared. This design utilised air space above the overlap area. This plan had been tabled at a meeting on 22 June 1998 of the design team. Other later versions of the straight bridge concept had been designed. However, on the instructions of the respondents, marker posts had been placed on the alveus of the river, including two poles immediately to the south of the centre line, on 7 August 1998.

[9] Senior counsel for the appellants then focused attention upon the matter referred to in the ninth submission previously narrated, which he contended could justify the court in holding that the appellants were "a proprietor in possession". He said that the Tribunal had held that on 15 June 1998 a Mr Lyttle, on behalf of the appellants, had become aware of the existence of the overlap area. This had had certain consequences, which were evident from the Record of Drawings issued in connection with Anchor Mills road bridge designs, No. 6 of the appellants' second inventory of documents. From July 1997 to January 1998 designs had been issued for a curved bridge. Thereafter on 26 June 1998 the first straight bridge design was issued, as already mentioned. That had been succeeded by others. It was therefore apparent that the appellants had changed their position in relation to the design of the proposed bridge on account of the apparent existence of the overlap area as part of their property. In this connection reference was made to a minute of the meeting of the design team held on 22 June 1998, No. 6 of the appellants' first inventory of documents, and to certain correspondence, being Nos. 9 and 19 of the same inventory. It was indicated that there had also been an enquiry made of the local planning authority in relation to the technical specifications of the straight bridge design and consideration of the question of whether it would be acceptable to the roads authority. It was submitted that these circumstances demonstrated the combination of animus and corpus necessary to constitute possession. In addition, there had been actings by a surveyor instructed by the appellants, as appeared from the letter of 26 August 1998, No. 14 of the appellants' first inventory of documents. The surveyor had been sent to the river with a view to ascertaining the precise position of the marker posts erected by the respondents. A triangulation exercise had been carried out. Thus there had been a physical presence near the site involving the appellants' agents looking over the air space above the overlap area. It was submitted that looking at a property with such a survey purpose in mind was an act of possession.

[10] Senior counsel for the appellants went on to explain that, after these events, there had developed what might be called a "tennis match" in which assertions and counter-assertions of proprietorship were exchanged between the appellants and the respondents, examples of which were to be seen in the correspondence between the parties' agents, Nos. 15, 18 and 19 of the appellants' first inventory of documents. It was contended that no legal significance attached to this process. Furthermore, it was submitted that the placing of the marker posts by the respondents possessed no such significance. But what was significant was the acquisition on behalf of the appellants of knowledge of the availability of the overlap area to them and their subsequently arranging for bridge designs to be prepared utilising that area. These events amounted to a physical act of control of the area concerned. In summary, it was submitted that the events upon which reliance was placed amounted to possession of the overlap area by the appellants. Accordingly, if one were to look only at the overlap area, there was evidence upon which the Tribunal was bound to hold, and that this court should hold, that the appellants were a "proprietor in possession", in accordance with the ninth submission.

[11] Senior counsel for the appellants then proceeded to furnish the court with an elucidation of the law which he contended was applicable to the case. He commenced with the terms of the 1979 Act itself starting with the scope of application of the system of land registration. Under section 1(1) it was provided that the Register related to "interests in land", which expression was defined to mean "any estate, interest, servitude or other heritable right in or over land". "Land" was defined by section 28(1) to include land covered with water. He then drew attention to the provisions of section 3(1)(a), (2), and (4). Section 4(2)(a) emphasised the importance of the Ordnance Map in the system of registration. Section 6 of the Act indicated the significance of the Title Sheet in the system. A bounding description was thus part of the system of registration created by the Act. In terms of section 4(3) of the Act, the date of registration was of significance. Senior counsel then went on to explain the effect of the provisions of section 5 of the Act, which dealt with completion of registration. Attention was drawn to the terms of section 6(5) of the Act which provided for the issue of an "office copy" of a Title Sheet, which is what had been issued to the appellants on 22 June 1998. Next he turned to section 9 of the Act, which was concerned with rectification of the Register. Subsection (3) provided for rectification which would prejudice "a proprietor in possession" only in the limited circumstances there specified. If the appellants had proved that they were a "proprietor in possession", none of the exceptions defined in section 9(3)(a) existed in the circumstances of this case, which meant that rectification was precluded. The Keeper had possibly used the provisions of section 9(1) of the Act in this case, with the result that an anomalous situation had come into being of there being two owners of one area of land. It was possible to equiparate a description in the Register with a habile title under the Sasine Register system. Section 12 of the Act dealt with indemnity in respect of loss. Section 12(2) authorised the Keeper to exclude the indemnity otherwise available under the section. Such an exclusion would be made in the case of an a non domino title, which had been registered for the purposes of prescription. Section 12(3)(d) emphasised the importance of delineated boundaries. There would be no entitlement to indemnity in respect of loss where the loss arose as a result of any inaccuracy in the delineation of a boundary, being an inaccuracy which could not have been rectified by reference to the Ordnance Map. In terms of section 15(1) of the Act, where an interest in land had been registered, it would be sufficiently described by reference to the number accorded to the Title Sheet relating to the interest. While counsel did not contend that the statute was ambiguous, he made reference to the Reid and Henry Committee Reports, Cmnd. 2032 of 1963 and Cmnd. 4137 of 1969.

[12] Having completed his survey of the legislation, senior counsel for the appellants posed the question of what conclusions were to be drawn from the provisions of the statute. He submitted that the appellants held the subjects as described in the Title Sheet REN566054, being subjects described under reference to fixed boundaries guaranteed by the State, there having been no exclusion under section 12(3)(a) of the Act. This situation supported the proposition that the boundaries were fixed and should not be reinterpreted to determine the issue of possession under section 9. On the Tribunal's approach, the overlap area was to be isolated from the remainder of the land comprised in the title; acts of possession were to be referable only to the overlap area, yet prejudice was to be assessed by reference to the whole area in the Title Sheet. That was anomalous or incongruous. There was no warrant to read section 9(3) narrowly. It should not be read as referring only to the "proprietor in possession" of the disputed area. Examination of what was said by the Tribunal at pages 34L and 35C and K-L indicated that the Tribunal were rewriting the legislation. The proper question was what was the meaning of section 9(3) of the 1979 Act.

[13] At this point in his submissions, senior counsel for the appellants dealt with certain specific issues which had arisen in the course of the debate. First, he submitted that Sharp v Thomson 1995 S.C.455 showed that Scots law, following Roman law, was unititular, which meant that only one title of ownership was recognised in any one thing at any one time, as appeared from the judgement of the Lord President at page 469, that proposition not having been challenged in the House of Lords (1997 SC (HL) 66). Secondly, section 3 of the 1979 Act treated registration as conferring a real right; however, a real right so conferred remained challengeable during the prescriptive period. Furthermore, section 8(3) of the 1979 Act preserved the possibility of acquiring a real right by positive prescription. However Rule 21(3) of the Land Registration (Scotland) Rules 1980 indicated that there might be two titles to a single parcel of land. Thirdly, attention was drawn to the reasoning of the Tribunal. It had concluded that the proper focus of attention for possession was the overlap area itself; secondly, having had regard to the concept of "well-understood boundaries", it considered that evidence of possession of the whole did not infer possession of the part; thirdly, while it was possible to look at evidence relating to the site as a whole, account could be taken only of evidence that bore upon the overlap area; fourthly, accordingly, evidence of possession of the whole property that did not bear directly or indirectly upon the overlap area was to be excluded from consideration. It was submitted that the first of the above propositions was wrong.

[14] At this point in the argument, senior counsel for the appellants accepted that his ground of appeal 2 was not properly focused. Accordingly he sought to amend it. The proposed amendment involved the deletion of the words "subjects possessed" in line 1 of that ground and the substitution therefor of the words "critical focus for evidence of possession". In addition there were proposed to be added after the word "encompassing" in line 2 the words "all evidence relating to". No objection was taken to this proposed amendment, which was allowed.

[15] Senior counsel for the appellants then turned to examine the approach taken by the courts to the operation of section 9 of the 1979 Act. In this connection he drew attention to Kaur v Singh 1999 S.C.180. The case dealt with the nature of the possession referred to in section 9(3) of the Act of 1979. He took from this case certain propositions. First, "possession" under section 9(3) was a "tie breaker" used in relation to the policy as to who should suffer, or what remedy should be available, in the event of conflict. Secondly, the court envisaged that a corporate body, as opposed to a natural person, might be in "possession", in terms of the provision. Thirdly, there were acknowledged to be unresolved issues regarding the degree of "possession" required in terms of the enactment. Reference was also made to the report of the case in question in the Outer House in 1998 S.C.233 at pages 241 to 242. Reference was also made to Short's Trustee v The Keeper of the Registers of Scotland 1994 S.C.122 at page 147.

[16] In considering the issue of possession, it was necessary to look at principle. Reference was made to Stair, Institutions, II.1.13. In the circumstances there described, possession of the whole of a property might be attained by exercising possessory acts upon a part. Reference was also made to II.1.17 to 20. Next, reliance was placed upon Erskine, Institute, II.I.20 and 21, paragraphs concerned with the nature of possession; and Rankine, Land Ownership, Chapter 1; Gordon, Scottish Land Law, Second Edition, paragraphs 14.01 to 14.10; and Stair Memorial Encyclopaedia, volume 18, paragraphs 116-123, 194, 196 and 197.

[17] Senior counsel for the appellants finally turned to examine the approach taken by the Tribunal in their decision. At page 35C-D of the Tribunal's decision, an approach was taken to proof of possession which was not supported by any authority. Similarly at page 36D-F the Tribunal had followed an approach to possession and its relationship to title which was not supported by any authority. They appeared to have dismissed the importance of a boundary line on a title plan. Furthermore, they had attributed importance to what they describe as the "natural physical boundary". That approach to the matter was misconceived, since there was no such feature in the circumstances of this case. They had wrongly concluded that evidence of occupation of the appellants' subjects as a whole would not suffice to establish possession of the overlap area. That was an erroneous approach. In any event, it was unclear what was meant by the appellants' "subjects as a whole"; presumably that expression was intended to exclude the overlap area. Also, it could be said that the Tribunal's reasoning relating to this aspect of the case was unclear. That was true of the passage at page 35F. The interest in land and the extent of the land in which any particular proprietor held an interest were inextricably interlinked. In this connection reference was made to sections 4(2)(a), 6(1)(a), 12(3)(e), and 15(1) of the 1979 Act; also to Rule 25 and Schedule B of the Land Registration (Scotland) Rules 1980. The interest in the land embraced the identification of its extent in the Title Sheet. The Tribunal appeared to have been confused as to the function of the Register. Thus the passage at page 35F of the decision was simply wrong. The reasoning at page 35G-I was also unsatisfactory and appeared to be inconsistent with what had been said by the Lord President in Kaur v Singh. At a later stage of their decision, at page 36J and 37G, the Tribunal appeared to attach undue importance to public assertions of possession. Furthermore, the Tribunal appeared to attach importance to the feature of a competition between the appellants and the respondents. That was inappropriate. The relevant question was whether there was, at the material time, a "proprietor in possession". What the Tribunal should have done was to look at the whole evidence of possession relating to the appellants' property as a whole. Had that been done, they would have come to the conclusion that the appellants had been in possession at the material time, having regard to the activities of a variety of individuals who had been acting on the appellants' behalf. In this connection reference was made to certain documents, being items 1, 2 and 3 in the appellants' second inventory of documents. Certain of the activities and visits to the site occurred after the appellants had become aware that they held a title to the overlap area on 15 June 1998. In this connection reference was made to the Tribunal's observations at page 36G-H. The fact of the matter was that, after that date, the appellants had been in possession of the overlap area.

[18] Junior counsel for the respondents moved the court to refuse the appeal. Senior counsel for the appellants had outlined two possible disposals of the case which were appropriate in the circumstances mentioned. The respondents were content with that approach to disposal. Junior counsel for the respondents commenced her submissions by focusing the issues involved in the appeal. She stated that she demurred from what had been said by the Tribunal at page 34J-K. At this point objection was taken by senior counsel for the appellant to the effect that there was no ground of appeal reflecting this position, which had not been argued before the Tribunal. In reply, junior counsel for the respondents said that the matter had been ventilated before the Tribunal, as appeared from pages 30L-31C of their decision. The whole matter had been dealt with by them at pages 34F-K. In the light of what had been said, we allowed junior counsel for the respondents to proceed with her submissions. She stated that it had been claimed that there was no dispute concerning the matter just referred to; however, that matter was the subject of the cross appeal.

[19] Junior counsel for the respondents next outlined the structure of her submissions. She would deal with the issue of possession, which was fundamental in the case. The authorities would be examined. She would then deal with grounds of appeal 1, 2 and 3. Thereafter she would examine the decision of the Tribunal and finally would deal with the cross appeal, which she contended should be allowed. It would not affect the orders made by the Tribunal.

[20] Dealing with the matter of possession, reference was made to Stair, Institutions II.1.17-20. An essential ingredient was an "act of the body". The formulation of plans for the future use of land did not amount to such an act; nor did the realisation that land was available for such use. In any event, continuation of possession might be ended by the occurrence of adverse acts. In considering the question of who was in possession, one might look at the initial acts of possession, which would be appropriate if there were no subsequent adverse acts by another party. However, the question of whether the appellants were in possession could not be answered simply by looking at their own actions; it was necessary to look at their actions, along with those of the respondents and to have regard to the subjects concerned. In the present context, possession had to be examined at the date when the issue of rectification arose, although that did not exclude consideration of earlier events. Reference was also made to Erskine, Institute of the Law of Scotland, II.1.19 and 20. It was evident that two persons could not possess the same property at the same time, leaving aside the concept of joint possession. In the same connection reliance was place upon the Stair Memorial Encyclopaedia, volume 18, paragraphs 117-122.

[21] It was accepted that the basic question was whether the appellants were proprietors in possession for the purposes of section 9 of the 1979 Act. However, to decide that question it was necessary to look at the whole circumstances to see if possession had been gained and not lost. In ground of appeal 1 it appeared that the appellants drew a distinction between possession for the purposes of section 9 and prescriptive possession. That distinction was false. The issue of whether prescriptive possession existed involved the same kind of questions, related to a prescriptive period, as were involved in a consideration of possession for the purposes of section 9.

[22] It was submitted that ground of appeal 1 proceeded upon an erroneous premise. The Tribunal had not approached the matter as a competition between the appellants and the respondents; they did not ask who had the better title. What they had done correctly was to pose the question whether the appellants were proprietors in possession. To answer that question, of necessity, the Tribunal had to look at the whole relevant circumstances. Thus this ground of appeal was misconceived. Examination of the decision of the Tribunal between pages 34K and 35J showed that they had followed the proper approach.

[23] Turning to ground of appeal 2, as amended, junior counsel for the respondents submitted that, once again, the ground was misconceived. In rejecting the appellants' contentions, the Tribunal had not rejected the relevance of acts of possession relating to areas other than the overlap area, as appeared from page 34L to 35F of their decision. The approach of the Tribunal had been quite consistent with the decision in Kaur v Singh. However, the overlap area was properly the focus of attention in the context of a claim for rectification of an alleged inaccuracy in the Register.

[24] Much reliance had been placed by the appellants on the passage in Stair at II.1.13, which was part of a wide-ranging discussion of the nature of possession. The principle that possession of part of a holding might, in the absence of contrary possession, be seen as possession of the whole was related to certain physical features. The whole of a property could be defined by the title only where there were no physical forms or features indicating what its limits were. In any event, the passage concerned had not been relied upon by other later institutional writers. The passage was not a sound basis for the appellants' arguments and could not be used to control the modern statutory context. Some reliance had been placed by the appellants upon the provisions of section 12(3)(d) of the 1979 Act. In the context of this case that provision was of no assistance. The passage in Stair at II.1.13 was the subject of discussion in the Stair Memorial Encyclopaedia, volume 18 paragraph 119. The passage following the second quotation in this paragraph was open to criticism as it failed to reflect Stair's qualification " ... unless there were contrary possessory acts". It could not apply to a unit of property which had been "expanded" by the error of the Keeper following the commencement of possession. Even if the Keeper's error had occurred before the appellants received a land certificate from the sellers, they could not be understood to have been in possession of the overlap area since they did not have the requisite animus. Only from 15 June 2002 could they have had that element in possession. At the commencement of their possession, the appellants were aware only of the entitlement conferred by the old land certificate, which did not include the overlap area.

[25] In any event, even if the appellants did acquire possession of the overlap area, the subsequent actings of the respondents were plainly adverse actings. To the extent that there had been actings by the respondents, involving the placing of posts in the river, there had been a loss of possession by the appellants, who, in any event, had never acquired possession of the overlap area because there had been no act of body and mind to achieve that end. The appellants' subsequent actings in removal of posts placed by the respondents were not sufficient to constitute possession.

[26] Passing on to deal with ground of appeal 3, junior counsel for the respondents submitted that the appellants had criticised the Tribunal's determination of an issue of fact in this ground of appeal. It was plain that the Tribunal had identified the difficulties involved in approaching the question of possession of an area of river bed, as appeared from their decision at page 34K-L. Consideration of the question had to commence as at June 1998, when Mr Lyttle received a copy Title Sheet from the appellants' solicitors. The question was what acts of possession had followed at that event. A number of matters required to be considered. The first of these, was Mr Lyttle's realisation of the existence of an error which might have the effect of favouring the position of the appellants. It was submitted that that circumstance could not constitute an act of possession of the overlap area. At best that might be seen as an act of the mind, assuming that the realisation of a situation by an agent was equivalent to the formation of an intent by the principal, which itself was not accepted. The second circumstance to be considered was the making of plans by engineers for the construction of a straight bridge over the river at the location in question. It was submitted that that action could not be seen as an act of possession, which required to involve some physical activity in or on the land. Thirdly, the actions of surveyors acting on behalf of the appellants had to be considered. It was accepted that a process of triangulation had been undertaken. This involved no more than looking through the air space above the overlap area. It was submitted that that could not properly be seen as an act of possession, which required to embrace some act of control over the area itself. Looking across air space could not be seen as such. Making measurements on land itself could be an act of possession in certain circumstances, but that was not what had occurred here. Looking at the totality of the circumstances relied upon, it was submitted that the appellants had never become possessors of the overlap area. It was the policy of the 1979 Act to protect a "proprietor in possession". It followed from that policy that the "possession" to be protected was the use and enjoyment of the property in a real sense. The appellants had never attained that.

[27] Junior counsel for the respondents then went on to consider the cross ground of appeal. This ground was to the effect that the Tribunal had erred in law by finding that a registered interest in particular land could be created solely by the placing of a boundary on a plan by the Keeper without his having received any application by any person for the registration of an interest in that land; separatim by any person who had acquired or intended to acquire an interest in the land. In this context it was necessary to consider the events which had occurred and the provisions of the legislation. The Tribunal described the events themselves in their decision at page 24B-25H. It was evident from this narrative that there was no deliberate decision to register a particular title conforming to the extended area. None of the statutory procedures had been followed. In particular, no application had been made by the appellants to become the registered proprietors of the overlap area. What had occurred was a spontaneous, random or accidental erroneous action by the Keeper. It was submitted that such an event was incapable of constituting the appellants as proprietors of the overlap area.

[28] It was evident from the 1979 Act that the legislation contemplated what might be described as trigger events prior to an application for registration and registration itself. Counsel then went on to examine the provisions of sections 1-6 of the 1979 Act in detail. She submitted that, having regard to these provisions, there were certain essential requirements for registration. These were (one) the occurrence of an external trigger event; (two) an application to the Keeper for registration under section 4 of the Act; and (three) the completion of registration on the Register. Putting the matter in another way, the Register was one of properly registerable interests in land. It was the respondents' submission that the simple act of drawing a line on a plan in the absence of any prior trigger event and application for registration did not create any registered interest in land. Hence, what had occurred here could not create a registered interest in the overlap area held by the appellants. The position was that rectification could take place here because the appellants were not a registered "proprietor" within the meaning of section 9(3) of the 1979 Act; on this view of the situation, possession was irrelevant. All that had occurred here was that a line had been positioned in the wrong place, by virtue of some electronic mishap; that event had not created a properly registerable interest. It was submitted that there was no technical difficulty about sustaining the argument just advanced. The record in the Lands Tribunal at page 1 and at page 28 was couched in terms wide enough to embrace an application for an order for rectification, or an appeal under section 25 of the 1979 Act from something done by the Keeper. The words of section 25 in particular were wide enough to cover what it was contended had happened here, namely, an alteration of the line on the plan. In other words, the Keeper had power to correct his own error at his own hand. It was, however, accepted that the orders sought at page 28 of the Tribunal record were framed as an application for rectification under section 9 of the 1979 Act. In connection with this part of her argument, reference was made to Brookfield Developments Ltd. v The Keeper of the Registers of Scotland 1989 S.L.T.(L.T.) 105, in which it had been held that the word "inaccuracy" in section 9(1) of the 1979 Act should be construed widely so as to include any incorrect or erroneous entry in or omission from the Register. The position was that the Keeper could not create something from nothing by an erroneous step. In particular he could not create any right in the appellants to the overlap area, no right to it having been conveyed to them in the disposition to them, which conveyed "the subjects registered in the Land Register of Scotland under title No. REN56654." The Title Sheet with that designation, dated 9 September 1996 showed the medium filum as the boundary in the relevant area. However, between that date and 30 September 1997, the date of the disposition to the appellants, the error had been made. Against this background, it had to be accepted that what was conveyed by the disposition to the appellants did include the overlap area, if the focus of attention was only the conveyance and the appearance at its date of the Register.

[29] The question arose whether the contention embodied in the cross appeal did violence to the 1979 Act. In this connection reference was made to Kaur v Singh. In that case, at page 182, it was recognised that the title as registered in the Register ought to reflect precisely the legal position in relation to that title. However, there was always an element of uncertainty in relation to the contents of the Register, since special protection was accorded to a "proprietor in possession", yet possession depended upon a state of facts about which the Register indicated nothing. Further, in the nature of things, the recognition of an inaccuracy in the Register required the examination of facts not disclosed in it. So, albeit that the Register was the primary source of information concerning the ownership of land, the status of entries in it was provisional and it was subject to rectification in appropriate circumstances upon the basis of factors external to it.

[30] In answer to questions by the court, junior counsel for the respondents submitted that the time at which the issue of whether a proprietor was "in possession" had to be answered was when that question was addressed by the Keeper in response to an application for rectification. The Keeper had been alerted to the error prior to 9 October 1998, as appeared from the letter of that date, No. 21 of the productions. The matter was dealt with by the Tribunal at page 29D of their decision.

[31] Senior counsel for the Keeper pointed out that, so far as the Tribunal's pleadings were concerned, the date of the formal application by the respondents for rectification of title REN56654 was 5 October 1999. The decision to rectify was communicated by letter dated 29 October 1999.

[32] It was indicated on behalf of the Keeper that his submissions would be confined to the cross appeal of the respondents. Senior counsel indicated that his submissions would fall into three parts: (1) the reasoning underlying the cross appeal; (2) submissions as to why that reasoning was wrong as a matter of statutory construction; and (3) submissions as to the unfortunate practical consequences which would follow, if that reasoning were correct. Senior counsel indicated that the Keeper took a neutral position on the issue of "possession", which formed the subject of the appeal. However, if the cross appeal remained live, he would move for its rejection.

[33] Dealing with the first chapter of his submissions senior counsel for the Keeper said that it had been contended that the Keeper could not create something from nothing because there had been no trigger event and no formalities involved in the changing of the boundary line. The argument for the respondents appeared to be that any error in registration which fixed the boundary in a position which went beyond that applied for rendered the resulting interest quoad excessum null and void. That argument was unsound. The registered interest of the appellants was, subject to any rectification under section 9, in respect of the whole area, including the overlap area. It was quite clear that the error which had occurred in the Keeper's Office pre-dated the conveyance to the appellants, so what was in fact conveyed to them, by virtue of the description in the disposition, included the overlap area. What had in fact been intended was irrelevant. As appeared from Brookfield Developments Ltd. v The Keeper of the Registers of Scotland, the 1979 Act allowed rectification to reflect what the Register should disclose "in the true world". However that case did not support the view that an administrative mistake on the part of the Keeper was an ultra vires act. Senior counsel then went on to describe in practical terms the system for keeping the Register since its inception, including the transition from paper maps to digital mapping. In such an operation errors might arise, some unimportant and others important. It was accepted that the Keeper had the power under section 9(1) to rectify the Register at his own hand, but that process was subject to the provisions of section 9(3) of the 1979 Act.

[34] Turning to the second chapter of his submissions, senior counsel for the Keeper reviewed the provisions of the 1979 Act and their implications. He emphasised that under the system of registration of title, the Title Sheet was the measure of the interest in land to which it related. That interest was not absolute, but was defeasible only upon the exercise of the power conferred by section 9 of the 1979 Act. One of the circumstances in which rectification might occur was where there were competing titles to the same area of land. The policy of the 1979 Act, as embodied in section 9(3), was to afford protection to a registered "proprietor in possession". By way of elaboration of his review of the law, senior counsel referred to Short's Trustee v The Keeper of the Registers of Scotland 1996 SC (HL) 14 at p.22, where the limited scope of rectification was explained. The case of Dougbar Properties Ltd v The Keeper of the Registers of Scotland 1999 S.C. 513, at p. 531 showed that, even if there existed an acknowledged error, rectification was the only available remedy. The existence of an inaccuracy did not alter the legal reality that the registered proprietor had a right created by registration. In this connection reference was made to section 3 of the 1979 Act. Once an interest in land had been registered, the obligation to deliver a title to the proprietor disappeared, since that was no longer necessary. While a registered interest was defeasible, the exclusive means whereby that might occur was to be found in section 9. In this connection reference was made to Short's Trustee v The Keeper of the Registers of Scotland 1994 S.C. 127 at p.144 and 1996 SC (HL) 14 at pages 21-22 and 25. It was explained that, if the Keeper were to recognise an error of a very minor nature, such as an obvious spelling mistake, he would amend it at his own hand. However, he would not adjust a boundary. Once an interest had been registered, in normal circumstances, the Keeper would have no reason to examine an entry for errors, unless they were drawn to his attention by others. In certain circumstances a unilateral error by the Keeper could be the subject of rectification, as appeared from Dougbar Properties Ltd v The Keeper of the Registers of Scotland. Reference was also made to MRS Hamilton Ltd v The Keeper of the Registers of Scotland (No.1) 1999 S.L.T. 829.

[35] The issue of competing titles to the same area of land was the subject of consideration in paragraphs 114 to 116 of the Reid Committee Report of 1963 (Cmmd. 2032) and paragraph 56 of the Henry Committee Report of 1969 (Cmmd. 4137). It had always been contemplated that there could be a competition of titles which might require to be remedied by rectification, or otherwise. Such problems could be remedied by agreement, in terms of section 19(3) of the 1979 Act. In relation to the protection of a "proprietor in possession", the case of Kaur v Singh elucidated the meaning of "proprietor" and "possession".

[36] Turning to the third chapter of his submissions, senior counsel for the Keeper dealt with the practical consequences of the respondents' submission in the cross appeal. In Short's Trustee v The Keeper of the Registers of Scotland, it had been made clear that, in relation to the system of registration of title, a balance had to be struck between the interests of persons possessing competing titles. That balance had been settled in section 9 of the 1979 Act. There was no separate mechanism which could be employed in relation to such problems. An error might be found, possibly years after its occurrence, when it could be very difficult to examine the state of the previous title. Prescription had a part to play in the resolution of such problems, but only where indemnity had been excluded, as appeared from section 1(1)(b)(ii) of the Prescription and Limitation (Scotland) Act 1973, as amended. It was wrong to say that the position adopted by the Keeper had left the respondents with no remedy. They had an a non domino title, which might be fortified by prescription, with the result that the Register could be rectified in due course. In all of the circumstances, if the cross appeal were to be allowed, that would undermine the high degree of certainty which land registration offered. The fundamental object of such registration would be undermined. Accordingly the cross appeal should be refused.

[37] Senior counsel for the Keeper went on to make certain comments on the appeal itself in relation to possession. It had been contended on behalf of the appellants that the Keeper had erred in extending the respondents' title to the medium filum of the river in the relevant area. The position was that the rectification of the respondents' title effected by the Keeper did not prejudice the appellants under section 9(3) of the Act. If possession were not held by the respondents, prescription would not fortify their title.

[38] So far as the matter of "possession" in section 9(3) was concerned, the concept required to be elucidated according to the law of Scotland, but in the context of the legislation. That had been done in Kaur v Singh. "Possession" in this context was not prescriptive possession. It was an element reflecting the implementation of the policy of the Act. Thus, in the present context, the issue of whether possession was open and peaceable was irrelevant. The concept operated in the context of limiting the right to rectification. Senior counsel for the Keeper stated that he accepted the view expressed by Stair in relation to possession of part of a property being capable of indicating possession of the whole. However, the fundamental issue was whether there was "possession" under section 9(3) of the Act. In that context, the institutional writers might not have much contribution to make. On the question of the time at which the issue of possession was to be settled, it had to be assessed at the point when an application was made for rectification, but that did not imply the taking of a "snapshot". It was necessary to look back in time over a period to see the substance of the position as regards possession. In the context possession could be equiparated with enjoyment of the property as opposed to symbolic overt deeds.

[39] Senior counsel for the appellants replied. His submissions would be in three parts: (1) a response to points raised by the court; (2) a reply to the submissions of junior counsel for the respondents; and (3) a response to the submissions made on behalf of the Keeper. Turning to the first part, three matters would be dealt with (i) the timing of the respondents' application to the Keeper; (ii) the positioning of concrete blocks; and (iii) the passage in Stair, Institutions. As regards the timing of the application to the Keeper for rectification, reference was made to productions 47, 48 and 49. Item 47 was an application for rectification in respect of title REN56654, dated 5 October 1999, item 48 was an application for rectification in respect of title REN93746, dated 5 October 1999 and item 49 was the decision letter of the Keeper, dated 29 October 1999, in which the decision to refuse rectification of the appellants' title and to rectify the respondents' title was communicated. Accordingly the formal procedure relating to rectification took place between 5 and 29 October 1999. Thus the section 9 test was to be applied as at 5 October 1999.

[40] Dealing with the position regarding the concrete blocks, reference was made to the findings of the Tribunal between pages 27L and 28I. It appeared that when the concrete blocks supporting the marker post were originally established on 7 August 1998 they lay across the centre line of the river. Subsequently instructions were issued by the respondents to adjust the position of the bases in order to leave them wholly to the south of the centre line, which was done on 21 September 1998. The subsequent history of that matter was dealt with at page 28F-G. This involved the washing away by the river of the original blocks and posts and the establishment of further blocks and marker posts. Subsequently the appellants arranged for their engineers to confirm the location of the posts and instructed contractors to remove the posts and place them on the southern side of the river within land admittedly owned by the respondents, which was done on 21 June 1999.

[41] As regards the passage cited in Stair, Institutions and to the authorities there mentioned reference was made to Hunter v. Hardie 15 January 1630 M. 13793, in which it had been held that possession of a part of unum tenementum was equivalent to possession of the whole for the purposes involved.

[42] Turning to the second part of his submissions, senior counsel considered firstly the issue of a bounding title. The position was that a statutory description required to be treated as equivalent to a bounding description. The land was a cohesive unit rather than a diverse one; accordingly until an issue arose under section 9 of the 1979 Act, possession of a part of the holding should be seen as possession of the whole. However, section 9(3) had created the statutory creature of a "proprietor in possession". That existed only in the context of a possible correction of an inaccuracy in the Register. Thus, when an application was made under section 9(1), the Keeper had to ask the question of whether any rectification would be to the prejudice of a "proprietor in possession". That involved consideration of the relevant facts and circumstances, matters external to the Register itself. The starting point of a consideration of prejudice had to be the identification of the extent of the land contained in the registered interest, which could be achieved only by reference to the Title Sheet. Having followed that approach, the issues of prejudice and possession had to relate to the area of land so identified. Counsel then proceeded to direct certain detailed criticisms to the submissions made on the respondents' behalf. It was contended that their approach treated a bounding title as something other than a cohesive unit or a well-understood boundary. In this connection reliance was placed upon paragraph 119 of volume 18 of the Stair Memorial Encyclopaedia of the Laws of Scotland and Beneficial Bank plc v. McConnachie and Another 1996 S.C. 119. The respondents' approach was in conflict with these authorities. It appeared to split the concept of possession and to introduce a test based on physical boundaries. However, the medium filum of a river was not a physical boundary.

[43] Senior counsel for the appellants next turned to the issue of the policy reflected in section 9 of the Act of 1979. The policy was to prevent the eviction of a registered proprietor who was in possession. That protection was available even though the competing claimant might be the "true owner", or have a better title than the proprietor in possession. There were three elements to the policy, first, section 9(3) was designed to promote stability in the Register, since rectification would not easily be available. Secondly, possession had been accorded the role of a criterion to prevent eviction of an owner in actual occupation in order to protect such a person, for whom money would not be an adequate compensation for eviction. Thirdly, where the issue was the removal of land from one title to another, one would expect to find a substantive competing title to justify such a transfer. In the present case, only the appellants had led evidence of meaningful occupation of the site belonging to them, a large commercial development, with the disputed area "used" to promote access to the main part of the site. The overlap area could be looked at as a part in a larger jigsaw. On the other hand, the respondents had led no evidence at all concerning their intentions in relation to the overlap area. Only the appellants could point to eviction as involving prejudice. In any event, the respondents could not be described as "the true owner" since they held only an a non domino title, which was open to challenge by the "true owner".

[44] As regards the construction of section 9 of the 1979 Act the expression "proprietor in possession" had no modifier, as was observed in Kaur v. Singh at pages 186 to 187. The Title Plan of the appellants showed their proprietorial interest. In the absence of any qualification to the expression "proprietor in possession" in section 9(3), the proper conclusion was that the reference was to possession of what was described in the Title Plan. It was evident from Dougbar Properties v. The Keeper of the Registers of Scotland that prejudice, for the purposes of section 9(3), could arise in relation to the whole registered interest in consequence of dispossession from part of it. If prejudice was to be looked at in that way, so also should possession.

[45] It was also evident from a consideration of the terms of section 9(3)(a)(ii) that consent of interested persons was specified without reference to the particular rectification sought. Once again, the focus in the enactment was upon the whole of the holding. Accordingly, it was wrong to focus attention only upon the overlap area, on this approach to the construction of the legislation.

[46] Turning to a series of miscellaneous points, senior counsel for the appellants emphasised that his submissions made a distinction between animus and corpus in relation to possession. These concepts should not be conflated. The evidence available in favour of the appellants relating to animus was strong. The triangulation exercise conducted on the appellants' behalf was sufficient as a physical act of possession. No more could be expected having regard to the subject-matter involved, part of a river bed. Plainly there could be no possession by a presence physically on the river bed. The establishment of marker poles on the overlap area by the respondents ought to be given little weight, since, when placed there, the respondents had no title, they had tendered no explanation for the placement of the poles, the extent of any possession was limited to the bases of the poles and their establishment had been continuously objected to by the appellants. In summary, the Tribunal had erred in their assessment of the position of the appellants in relation to possession at pages 36I-J 37D and 37F of their decision. Commenting on the submissions made on behalf of the Keeper, senior counsel for the appellants adopted those submissions in so far as they related to the cross-appeal.

[47] Senior counsel for the respondents began by adopting the submissions of his junior. He indicated that his submissions would fall into three chapters: (1) possession by the appellants; (2) counter possession; and (3) the cross-appeal. Dealing with the question of possession, the crucial question was what had been found as fact by the Tribunal. That was apparent from page 24G of the decision and following. In the first instance the Title Plan REN56654 showed the southern boundary of the property as being the centre line of the river. The consequences of the digital conversion of the map base of the Register were described, at page 24K-L, of the decision. In the first instance, there was no awareness of the occurrence of the change in mapping. It was asserted that Mr. Johnston had conveyed to the appellants a personal right only up to the medium filum of the river in the relevant area. In view of the appellants' lack of awareness of the registered boundary of the property concerned, it was submitted that they could not have had an animus to possess the overlap area. As was pointed out at page 25K of the decision, when the appellants acquired the subjects they were unaware of the erroneous change in the south boundary and assumed that their title to the east of the footbridge ran only to the centre line of the river.

[48] In contrast to the appellants' position, the respondents had obtained a personal right to, inter alia, the overlap area in December 1997. Subsequently, the appellants had become aware of the true position in the Register on 15 June 1998, as appeared from the Tribunal's findings at page 26G. Against this background, certain points were to be emphasised. First, despite the appellants' knowledge of the position of the respondents and of acts done by them, the appellants had taken no action to dispute their position, save for the moving of the marker posts on 21 June 1999. In the opening submissions made on behalf of the appellants, nine propositions had been set out. It was in relation to propositions 5 and 6 that the area of dispute between the parties existed. Those propositions had been too broadly stated. The dispute was whether or not the Tribunal had been entitled to have regard to all of the circumstances applying over the entire area shown in the appellants' Title Plan, including the overlap area; or whether it was proper to concentrate solely on possession of the overlap area.

[49] Ground of appeal 2 had been amended during the course of the appellants' initial submissions. It contained two propositions, the second of which was disputed. The respondents did not accept that the critical focus for evidence of possession was restricted to the overlap area. The critical focus was the overlap area, but it was not immaterial to look at the evidence of possession of the whole area. That is what the Tribunal had done, as appeared from their decision at page 34L to the end. It was submitted that it was necessary to look at the taking of possession of the whole area in the first instance. However, the structure of the Act required that the focus of attention in relation to rectification must be the land which would be affected by it. Before the provisions of section 9(3) of the 1979 Act could operate, there had to be substantial possession, loss of which could result in prejudice. In this connection reliance was placed on Kaur v. Singh at pages 193G-194B. It showed that a term such as "possession" could have a wide range of meanings depending upon the context. Thus any argument suggesting that it had a particular meaning in the context of the 1979 Act, based upon its meaning in another context ought to be regarded with caution.

[50] When the appellants acquired their title, plainly they had no animus to possess the overlap area, to which they had never had a personal right. When they took possession of the subjects REN56654, not only did they not take specific possession of the overlap area; but they avoided it, in respect that they proceeded to design a curved access bridge thus avoiding that area. After 15 June 1998, the appellants might be said to have acquired an animus to possess. That was based, not on a personal right, but on the basis of the accident which had occurred, which, by then, had come to their attention. Following the acquisition of that knowledge, the appellants had taken no steps to enter the area, save on 21 June 1999. They took no court action to evict the respondents, or to assert their own possession. Given that the matter was in issue by August or September 1998, when the Keeper had refused to rectify the appellants' title, the Tribunal were correct to reach the conclusion which they did. The main argument advanced on behalf of the appellants was that the taking of possession of part of the property comprised in the Title Plan REN56654 embraced possession of all that was within the title. That had not been the approach taken before the Tribunal. Upon the assumption that animus came into being on 15 June 1998, there had been no acts of the body, no corpus thereafter. The need for such acts was to demonstrate possession to the world. Merely to look longingly over the property was insufficient. The critical issue was whether the appellants had come to be in possession of the overlap area, either before or after the spontaneous alteration of the title by the Keeper. If they had not, that was the end of the case. Prior to 15 June 1998 the had been no animus. After that date there had been insufficient physical possession to render the appellants in possession of that area. It might be that acts on the undisputed area might infer possession in relation to the disputed area. However, there had been no possession of the undisputed area of the site of such a nature as to imply anything in relation to the disputed area. There was no basis upon which the case could be sent back to the Tribunal to consider further evidence.

[51] Senior counsel for the respondents next proceeded to consider the issue of counter-possession by them. It was submitted that the respondents had been in possession from the time that they had acquired a personal right to the disputed area. Where there was evidence of competing possession, all of it had to be examined, since only one person at a time could be in possession in a disputed context. The findings of the Tribunal between pages 27L to 28C were important. The actions there described had been done in such a way as to relate to the overlap area. It might have been, in a sense, artificial to insert poles resting on concrete blocks in the bed of a river, but it was an unequivocal assertion of possession, as the Tribunal had found. In response to these actions, the appellants had not done enough to establish their own possession. In this connection reference was made to Stair, Institutions II.1.22. The appellants had taken none of the appropriate steps to assert their possession of the overlap area. By 21 June 1999 the issue had already been brought before the Keeper, who had refused to rectify the appellants' title by removing the overlap area from it, as appeared from the Tribunal's decision, page 29B to C. Indeed the overlap area had then been added to the respondents' title. These decisions had been intimated on 1 April 1999, prior to the movement of the market posts by the appellants. Following the decisions of the Keeper, the movement of posts was quite immaterial. The fact that the formal application to the Keeper was not made until 11 October 1999 was not of significance.

[52] Senior counsel for the respondents then proceeded to deal with issues relating to the cross appeal. The issue raised in the cross appeal had been ventilated before the Tribunal, but the respondents' submissions had been rejected, as appeared from page 34F to K of the decision. The question was whether the appellants were to be regarded as a registered proprietor in terms of the legislation. Upon the assumption that the Keeper had acted ultra vires in causing the boundary line to be moved, resulting in the creation of the overlap area, that act was a nullity; the court had power to interfere in terms of the provision of section 25 of the 1979 Act. However it was not necessary to take the argument that far. It was accepted that the court was concerned with the issue of rectification under section 9. Because the appellants were not a "proprietor" in the appropriate sense, section 9(3) did not apply and accordingly rectification could be made under section 9(1). The argument was that simply by moving a line on a map for no good reason the Keeper could not create an interest in land of which there would be a proprietor. An interest in land could be registered only if there was an intention to register it. In that connection reference was made to section 2(1), (3) and (4) of the Act of 1979. In all of the cases referred to in those provisions, there was an intention to create or transfer an interest in land; that was not the position here. What was critical was that, in those cases, a person made an application to the Keeper on which he would act, in terms of section 4 of the Act. There was no such feature here. In connection with these submissions, reliance was place upon the decision in Brookfield Developments Ltd v The Keeper of the Registers of Scotland 1989 S.L.T. (L.T.) 105, an appeal to the Tribunal in terms of section 25 of the Act. The concept of inaccuracy in the Register had to be construed widely, as appeared from page 110.

[53] Senior counsel for the Keeper had taken issue with these submissions. He had contended that, if rectification were involved, section 9(3) of the Act took effect. That was not so. What had happened here was that the Keeper had "created" a proprietor of the overlap area in error. If there had been an application to the Keeper and an error had been made in the handling of it, the situation might be different. Submissions on behalf of the Keeper had focused on the "sanctity of the Register". Plainly that was important, but any stability possessed by the Register was provisional; its contents were always subject to rectification. Further, changes in the Register might occur on a daily basis; accordingly a search of it was always necessary. The kind of error which had occurred here could have been corrected by the Keeper at his own hand, had it been noticed before any interested party identified it. In short, what had occurred had not created a "registration" within the meaning of section 3 of the Act. If this kind of error could not be corrected without the operation of section 9(3) of the Act, no correction would be possible without enquiry. In all the circumstances the cross appeal ought to be sustained. The practical result of that would be that the court would order rectification of the Register under section 9(1), without reference to any "proprietor in possession". That would not involve any alteration to the order of the Tribunal which had ordered rectification.

[54] Senior counsel for the Keeper replied on a number of miscellaneous points. On the matter of the chronology of the application of the respondents for rectification, it was dated 5 October 1999, was received by the Keeper on 19 October 1999 and the Keeper's decision was issued on 29 October 1999, as appeared from productions 48 and 49. It had been contended on behalf of the appellants that the respondents could not be in competition with the appellants because the former possessed an a non domino title. It was not appropriate to look at the basis of the registered title. There might be rectification under section 9(3)(iv) in a situation where there was such a title. Turning to the submissions by senior counsel for the respondents, it was necessary to look at the disposition, production 43, in order to see what had been conveyed to the appellants. The knowledge of the disponer or disponee was irrelevant to what was transferred in property law. However, such knowledge might be relevant in relation to possession because of the requirements of animus. Reliance had been placed upon passages from Stair's Institutions. It should be recognised that Stair wrote in relation to circumstances very different from our own. His observations were not made with reference to the legislation with which the court was concerned. In relation to the cross appeal, emphasis had been laid on the lack of an application for registration and a mistake on the part of the Keeper being incapable of creating a "proprietor". However, the appellants had applied for registration of a title to the overlap area, so there was "registration" of the right within the meaning of section 3 of the Act. The case of Brookfield Developments Ltd v The Keeper of the Registers of Scotland was of no assistance; it was an authority relating to the operation of section 6(1)(e), which was a very different situation from the present one.

The Decision:
[55] This appeal from the decision of the Tribunal is brought under section 11 of the Tribunals and Inquiries Act 1992, which provides for such an appeal "if any party to proceedings.... is dissatisfied in point of law with a decision of the Tribunal". Thus the appeal is limited to one on a point of law. While that limitation would not necessarily preclude all consideration of matters of fact, in appropriate circumstances, there was no dispute before us relating to what might be called the primary facts of this case, as opposed to the inferences properly to be drawn from those primary facts. I note that the position before the Tribunal was similar. At page 24F to G the Tribunal observe

"that the parties' careful examination of the whole background facts and circumstances gave us a fairly full picture and allowed any significant issues or potential dispute as to fact, to be resolved. It became apparent that the issues between the parties turned essentially on questions of law."

[56] I consider it appropriate, before embarking upon an explanation of my decision, to say something about the statutory background to the matters in issue. It is to be noted that, in the application to the Tribunal by the present respondents, first of all there was an appeal against a decision, act or omission of the Keeper under the provisions of section 25 of the 1979 Act. Separately they applied to the Tribunal for an order in terms of section 9(1) of the 1979 Act requiring the Keeper to rectify the Register in the respects set forth in the appeal to the Tribunal, which appears from the record in the Tribunal proceedings, production 8. While section 25 of the 1979 Act assumed some significance in the argument before us in relation to the cross appeal, the main focus of discussion was the decision of the Tribunal to rectify in terms of section 9(1) of the 1979 Act. The details of that decision are set forth in the order of the Tribunal, dated 4 May 2001. That decision, of course, involved rectifying the Register in respect of Title Sheets REN93746 and REN56654. It is apparent from what is said by the Tribunal at pages 38K to 39C that, before them, the issue to be determined was one of rectification under section 9. The Tribunal observed that parties were agreed that, in procedural terms, it did not matter whether the Tribunal sustained the appeal or dealt with the matter as an application under section 9. In the event, the order pronounced by the Tribunal was one for rectification and accordingly I shall proceed upon the basis that the main appeal before us related to that matter.

[57] In these circumstances it is appropriate initially to focus attention upon the relevant provisions of section 9 of the 1979 Act. Section 9(1) provides:

"Subject to sub-section (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.....".

Section 9(3) provides:

"If rectification under sub-section (1) above would prejudice a proprietor in possession -

(a) the Keeper may exercise his power to rectify only where -

(i) the purpose of the rectification is to note an overriding interest or to correct any information in the register relating to an over-riding interest;

(ii) all persons whose interest in land are likely to be affected by the rectification have been informed by the Keeper of his intention to rectify and have consented in writing;

(iii) the inaccuracy has been caused wholly or substantially by the fraud or carelessness of the proprietor in possession; or

(iv) the rectification relates to a matter in respect of which indemnity has been excluded under section 12(2) of this Act;

......".

[58] In view of the prominence which section 9(3) assumed in the argument before us and, in particular, the importance which the concept of "possession", in the context of section 9 enjoys, I think it appropriate to reiterate what has been said about those provisions and that concept previously. In Kaur v Singh issues arose relating to the status of the holder of a Standard Security in relation to the expression "proprietor in possession" in section 9(3). While therefore the decision in that case has no direct bearing upon the facts of this one, the Opinion of the Court contains useful observations of a more general nature relating to the approach to be taken to those statutory provisions. At page 187F to 188B the Lord President referred to the history of the provision, indicating that it represented the determination of the question as to what weight was to be attached to "true ownership" of property in a system of registration of title. As a matter of policy, the legislature had decided that the position of a "proprietor in possession" should be accorded protection in the context of possible rectification of the Register. As to the nature of the possession involved, at page 191G the Lord President said:

"Like the Lord Ordinary, we consider that the relevant possession is possession of the subjects rather than simply of a legal interest in the subjects. We did not indeed understand it to be disputed that a proprietor in natural possession of the subjects falls within the terms of the subsection. It may well be that the same applies to a proprietor who possesses in other ways, say, through a student daughter who occupies the flat in question.... In interpreting the expression "in possession" as referring to possession of the subjects, we are again conscious that the legislator has used the term 'possession' without any qualification and that it is the term so used which we have to interpret".

At page 193G he went on:

"It is well known that terms such as 'possession' have a wide range of meanings and that one must always have regard to the particular context in which they are used. For that reason alone we would treat with caution any argument which sought to construe the term 'possession' in the 1979 Act by reference to its use in the 1973 Act [The Prescription and Limitation (Scotland) Act 1973]. Such caution is particularly appropriate when the role of possession in the two statutes is different, as it is here.... Under section 9(3) of the 1979 Act possession...... comes into play only in the situation where the person seeking rectification may ex hypothesi have a 'better' title to the land than the proprietor whose name appears in the register. Possession is then relevant not because it shows that the registered proprietor has a better claim to the title, but because, for reasons of policy, the law chooses not to disrupt the proprietor who is in possession. In this context the role of possession is as a criterion for choosing whether the person seeking rectification of the title should succeed or on the other hand should fail and have to rely on an indemnity for his loss from the Keeper under section 12."

In the light of the foregoing observations, I consider that, in the resolution of the questions in the present appeal, it is important to concentrate on the concept of "possession" in the context of section 9(3) of the 1979 Act. Accordingly, caution is necessary in utilising authorities dealing with possession in some different context.

[59] With these preliminary observations I now come to deal with the contentions which were made to us. Section 9(3) of the 1979 employs the words "....would prejudice a proprietor in possession....". In the argument before us, no controversy arose in relation to the element of "prejudice" in that provision. The issues which were ventilated related fundamentally to the concept of "possession". In their decision, the Tribunal dealt with the matter of "possession" in detail and at length between pages 34K and 37F of their decision. Their resolution of the issue before them was achieved as a matter of inference from the primary facts which they found. Their conclusion was in these terms at page 37F:

"Having concluded that possession of the registered unit as a whole does not justify an inference of possession of the part in dispute and there being no evidence bearing directly on that part, we are forced to the conclusion that Safeway have not established that they fall to be treated as proprietors in possession of the relevant land. We have not required to reach a conclusion on the question of whether overt public assertion of possession might, in some circumstances, be treated as equivalent to physical occupation. Nothing of that nature was clearly established in the period up to 7 August 1998 and for the period thereafter, we do not think that Safeway have established any sufficient public assertion of possession to compete with the acts of possession by Tesco."

Against this background I now come to deal with the three particular grounds of appeal formulated by the appellants.

[60] Two particular criticisms of the Tribunal's decision are contained in the first ground of appeal. The first of these is to the effect that the Tribunal erred in law by treating the issue of possession as a competition between the appellants and the respondents, whereas the true issue was whether the appellants were "a proprietor in possession" for the purposes of section 9. I have not been persuaded that this particular criticism of the Tribunal's decision is sound. In the passages of the Tribunal's decision to which I have already referred, it appears to me that the Tribunal looked at all of the relevant circumstances relating to possession. I consider that there is no doubt that the Tribunal were well aware of the issue which had to be addressed, that is to say whether the appellants were "a proprietor in possession", within the meaning of section 9(3). In this connection I refer to the decision at pages 34F to 35J. At page 35G to J, the Tribunal refer to the dicta mentioned above in the case of Kaur v Singh, thus indicating that they were alive to the true nature of the issue which they had to decide. As regards the suggestion that the Tribunal erred in treating the issue of possession as a competition, I consider that there is no substance in this attack. In this connection it has to be recognised that there exists a principle of law that, save for a situation in which joint possession by two or more parties is involved, no more than one person may be in possession of the same land at the same time. The matter was put thus by Stair in his Institutions (More's Edition) at II.1.20:

"Possession then is lost by a contrary possession, and it is interrupted by contrary acts or attempts of possession, which if they do not attain the effect to expel it, it is called a troubled or disquieted possession; for nothing can be possessed in solidum by more than one, either simply or in relation to the same right; for as there cannot be more proprietors than one of the same kind, though one may be superior, and another vassal; so there cannot be more possessors than one, and so more liferenters cannot possess in solidum; and therefore the entry to possess that which is already possessed, must expel the prior, or else introduce a partial and common possession."

The same point is made in more modern terms in the Stair Memorial Encyclopaedia of the Laws of Scotland, Vol.18 para.118:

"As a general rule only one person can be in possession of property at any one time, for exclusivity is of the essence of possession. So when two parties have competing claims to possession, only one can be accounted possessor. If A possesses property then it must follow that B does not. If B subsequently attempts to dispossess A there are three possible results. If B is successful, B is possessor. If B is unsuccessful A remains possessor. Finally if the contest is inconclusive, neither is possessor and the property is unpossessed. Dual possession is however possible where the claims of the parties are complementary rather than antagonistic."

In the light of this principle, it appears to me inevitable that the Tribunal, in its treatment of the issue of possession, should have looked at the whole circumstances, including the position of the respondents as well as that of the appellants. As was pointed out in the narrative of facts found by the Tribunal, certain acts of a possessory nature were carried out by the respondents on the overlap area. In my view, it was plainly appropriate for the Tribunal to examine those circumstances in relation to the question of whether the appellants had demonstrated that they were, at the material time, in possession of that area. As regards the second criticism of the Tribunal's decision made in ground of appeal 1, I am not persuaded that it possesses merit. As I have already pointed out, I consider that the Tribunal was well aware of the nature of the issue which it had to decide and of the appropriate approach to that issue, as explained in Kaur v Singh. Further, I do not understand in what particular respect it is said that the Tribunal erred in adopting an approach for the determination of possession in the context of establishing a prescriptive right. It appears to me that nowhere in the Tribunal's decision is it suggested that any inappropriate criteria of that nature were adopted. In all these circumstances I consider that this ground of appeal is without merit.

[61] Turning to ground of appeal 2, after amendment, it expresses the criticism that the Tribunal erred in law by identifying the critical focus for evidence of possession for the purposes of section 9 of the 1979 Act as restricted to the overlap area, rather than as encompassing all evidence relating to the land contained in the appellants' Title Sheet. It is contended therefore that the Tribunal erred by excluding from consideration relevant and competent evidence of possession. Having considered the treatment of the Tribunal of the issue of possession and noted the range of matters taken into account by them in that connection, I am not persuaded that the Tribunal fell into error in the respects alleged. In the passage of the Tribunal's decision between page 34K and 35D, it considers the appropriate approach in relation to evidence of possession where a dispute exists as to possession of a small part of a larger holding. At page 35C they say this:

"If the nature of subjects covered by the registered title is such as to justify an inference of possession of the whole without direct evidence of physical possession of every single part, necessary possession may be established. If the nature of the physical subjects covered by the title does not invite that inference other evidence may be required."

I find myself in agreement with that statement.

[62] It appears to me that the particular submission reflected in this ground of appeal, while advanced before the Tribunal, was more elaborately stated in the appeal before us. Before us emphasis was placed upon a passage in Stair, Institutions II.1.13 to the following effect:

"So then the third kind of possession was, when the earth began to be divided by limits and bounds, and to have common denominations, then the possession of the whole was attained by exercising possessory acts upon a part; as he who possesseth a field needs not go about it all, or touch every turf of it, by himself or his cattle, but by possessing a part, possesseth the whole, unless there were contrary possessory acts. So possession of the greater part of lands, contained in one tenement, was found sufficient to validate a base infeftment as to the whole, and to exclude a posterior public infeftment, from removing the tenants of a part of the tenement, though the base infeftment had possession several years, and had attained or pursued for no possession of these tenements;......".

Once again the essence of this passage, so far as pertinent in the present appeal, is to be found in the Stair Memorial Encyclopaedia of the Laws of Scotland Vol.18, para.119, where the passage just quoted is repeated. In relation to the passage from Stair, in my opinion, it is important to note the words "..... but by possessing a part, possesseth the whole, unless there were contrary possessory acts." In my view, the passage from Stair does not affirm that possession of a part may be equivalent to possession of the whole in all circumstances and, in particular, in a situation where there is a competition of would-be possessors. That was, in my opinion, the situation which existed in the present case. As appears from the Tribunal's narrative of the primary facts, the respondents took certain actions by way of establishing marker posts in the location of the overlap area. Against that background, in my view, it was inevitable that the Tribunal should go on to consider the whole circumstances relating to the possession of the overlap area in particular. It is quite plain that one of the circumstances which they did consider was the possession by the appellants of what might be described as the landward area of their holding and the significance, if any, of that in relation to the overlap area. The conclusion which they reached at page 36L was that they had been unable, on the evidence, to identify any stage at which the appellants could reasonably be said to have been established as proprietors in physical possession of the latter. They then go on:

"If they had been so established before Tesco took physical steps to assert their rights, these steps might have been able to be disregarded as part of a 'tennis match'. As matters stand however they can properly be seen as evidence not only of an assertion of right but as the taking of possession by Tesco of the relevant part of the river."

In this connection it should be mentioned that the Tribunal did not regard the events of 21 June 1999 as of any evidential significance

"because any inference to be drawn from their actings on the one day does not stand comparison with the actings of Tesco as demonstrative of possession and further, because matters had reached a stage where their actings on that date cannot properly be regarded as having evidential significance in relation to the present issue."

In my view it is entirely understandable that the Tribunal took that view, having regard to the fact that by 21 June 1999 the dispute had been brought to the attention of the Keeper, as appears from the decision at page 29C-D. In all of these circumstances, I am not persuaded that the Tribunal erred in law in the manner alleged in this ground of appeal.

[63] I turn now to consider the appellants' ground of appeal 3. The allegation made is that the Tribunal erred in law by holding that the evidence led in relation to the overlap area was insufficient to amount to possession for the purposes of section 9 of the 1979 Act. It is said that in considering the requirements for possession in relation to corpus the Tribunal gave insufficient weight to the nature of the overlap area being a small part of a river bed. I have some doubts as to whether the allegation made in this particular ground of appeal amounts truly to an allegation of an error of law. As I have sought to point out, the primary facts before the Tribunal were substantially not controversial. What was controversial was the proper inferences to be made from them. What the Tribunal has done is to consider the facts established before them and thereafter to consider whether possession for the purposes of section 9 was established by the appellants. In the light of the whole material before them they reached the conclusion that it was not. In these circumstances I doubt whether it can properly be said to be an error of law on the part of the Tribunal that particular evidence led in relation to the overlap area, considered alone, was insufficient to amount to possession. Be that as it may, approaching this ground of appeal upon the basis that it does relevantly state an error of law, it is necessary to consider the factual material on which reliance was placed in support of it. During the argument before us, emphasis was placed upon preparations made on behalf of the appellants for the erection of a straight bridge, following upon the discovery, on or about 15 June 1998, by Mr Lyttle of the southern boundary of the appellant's property disclosed in the Register. What followed that discovery is described at page 26G to 27E of the Tribunal's decision. Also, at page 28D to E reference is made to the survey work carried out on the instructions of the appellants following upon their becoming aware of the presence of the markers erected by the respondents. It appears to me that the steps by way of preparations, planning, seeking permission and the like, relied upon by the appellants, were taken into account by the Tribunal. However, in those circumstances, they concluded that an inference of possession on the part of the appellants could not be drawn in the light of the whole circumstances. Indeed, in my opinion, the conclusion thus reached was amply justified by the primary facts. The situation was that none of the survey work, preparations, planning and seeking permission founded on involved anything done directly on the overlap area; there was therefore no corpus. It appears to me that, in their conclusions at page 36G to L of their decision the Tribunal took the material concerned into account, but in the light of the whole circumstances reached a conclusion adverse to the appellants. In so doing, I do not consider that the Tribunal erred in law in any respect. As regards the criticism formulated in the last part of this ground of appeal, again I do not consider that the Tribunal erred in law. It is apparent from what is said at page 34L of their decision that the Tribunal were well aware of the nature of the overlap area, being the alveus of a river and that special considerations inevitably attached to such property. In the whole circumstances, I am not persuaded that ground of appeal 3 possesses merit.

[64] In the light of the conclusions which I have formed, it follows that I consider that the appeal should be refused and the order of the Tribunal of 4 May 2001 affirmed.

[65] In the argument before us, extensive submissions were made in relation to the cross grounds of appeal stated in the respondents' answers to the grounds of appeal of the appellants. Having regard to the conclusions which I have reached on the appellants' grounds of appeal themselves, I consider that it is unnecessary to express any detailed view upon the cross grounds of appeal. Suffice it to say that the arguments advanced in support of the cross appeal were in substance advanced before the Tribunal themselves. At page 34G to K the Tribunal rejected those submissions. I see no grounds for criticising the reasons given by the Tribunal for that decision.

Safeway Stores Plc v. Tesco Stores [2003] ScotCS 171 (06 June 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Osborne

Lord Hamilton

Lord Kingarth

XA124/01

OPINION OF LORD HAMILTON

in the appeal to the Court of Session under Section 11 of the Tribunals and Inquiries Act 1992

SAFEWAY STORES plc

Appellants;

against

a decision of the Lands Tribunal for Scotland, dated 4 May 2001 and intimated to the appellants on 8 May 2001

and

TESCO STORES LTD

Respondents;

and in the cross appeal

TESCO STORES LTD

Cross Appellants;

against

THE KEEPER OF THE REGISTERS OF SCOTLAND and SAFEWAY STORES plc

Cross Respondents:

_______

Act: Murphy, Q.C.; Archibald Campbell & Harley (for Safeway)

Alt: Martin, S.P.L. Wolffe; Brodies (for Tesco): Hodge Q.C., Crawford; R. Henderson (for Keeper of the Registers)

6 June 2003

[66] In this Opinion I shall refer to the appellants in the principal appeal as "Safeway", to the respondents in that appeal as "Tesco" and to the Keeper of the Registers of Scotland as "the Keeper". I agree with your Lordship in the chair that the principal appeal fails; I am of opinion that Tesco's cross appeal also fails. I gratefully adopt your Lordship's narrative of the background circumstances and of the submissions made to us. Because of the importance of the issues canvassed and in deference to the arguments with which we were favoured, I prefer to express in my own words my reasons for the disposals which I favour.

[67] Although if the principal appeal fails, as it does, views expressed on the cross appeal may properly be regarded as obiter, a strictly logical discussion would address first the issue raised in the cross appeal since, if Safeway was not at the relevant time a "proprietor" within the meaning of the Land Registration (Scotland) Act 1979, it could not be a "proprietor in possession" within the meaning of that statute. However, I shall express my views on the cross appeal with relative brevity.

[68] Section 1(1) of the 1979 Act provides that "There shall be a public register of interests in land in Scotland to be known as the 'Land Register of Scotland' (in this Act referred to as 'the register')". Subject to subsection (3), section 9(1) of the Act empowers the Keeper (and in some circumstances requires him) to "rectify any inaccuracy in the register by inserting, amending or cancelling anything therein". Section 9(3) restricts the scope of the power of the Keeper to rectify (and of the circumstances in which he may be required to rectify) where a particular condition is satisfied. That condition, subject to certain exceptions, is that "rectification under subsection (1) above would prejudice a proprietor in possession". None of the expressions "proprietor in possession", "proprietor" and "in possession" is defined for the purposes of the Act. These are not unfamiliar legal expressions, although their meanings in a particular statutory context will require to take colour from that context.

[69] The register is designed to operate as an authoritative and reliable public record of interests in land. Its importance for the security of transactions in such interests is fundamental. Its accuracy is accordingly also of the first importance. That inaccuracy in the register can arise is implicit in section 9(1). There is, in my view, no reason to suppose that the scope for inaccuracy in the register is restricted to circumstances where steps have been taken under the earlier sections of the statute to register a previously unregistered interest or to transfer an existing registered interest. Inaccuracies, accidental or even deliberate, could conceivably also occur in the course of the very management and control of the register. It is clearly important that there should be a facility to correct inaccuracies howsoever arising. It is also important that such a facility should be statutorily based - at least where existing interests could be affected by any correction. The inaccuracies which arise may include inaccuracies, large or small, as to the geographical extent of a registered interest. I see no reason why "any inaccuracy" in the register should not include a mapping inaccuracy arising out of some electronic error or lack of refinement occurring in the course of its management. The "register" within the meaning of section 9(1) is the public register established under section 1(1) and under the control and management of the Keeper by virtue of section 1(2). At any point in time the contents of that register will be what appears, accurately or inaccurately, in it. The power under section 9(1) is, subject only to subsection (3), to rectify any inaccuracy in the register by inserting, amending or cancelling anything therein. As a matter of statutory construction the scope of rectifiable inaccuracies is not, in my view, qualified by the manner in which they have arisen.

[70] The contents of the register at any time will include not only entries describing the geographical extent of interests in land but also entries identifying persons as proprietors of those interests. The scope for possible inaccuracy includes not only the geographical extent of any interests in land but also the identity of those in proprietorial right to such interests. Where, in the register, a person is entered as the proprietor of a particular interest, that person is, in my view, for the purposes of section 9(3) the proprietor of that interest - whether or not the relevant entry, as to the identification of the person or as to the extent of his interest or as to both, is accurate or inaccurate. Again the manner in which any inaccuracy as to proprietorship came to have entered the register does not, in my view, restrict the scope of "proprietor" within the meaning of section 9(3). Whether that entry was intentionally or inadvertently made is irrelevant.

[71] As I understood Tesco's submission as finally developed before us, the inaccuracy in Safeway's title (the inclusion within its geographical extent of the overlap area) could be rectified by the Keeper under section 9(1) - indeed it was an order to that effect that Tesco sought from the Tribunal. But, so the submission ran, that power or duty was not in the present circumstances restrained by section 9(3) since Safeway was not, to the extent of the overlap area, a "proprietor". The denial of that designation proceeded on the basis that, to the extent of the overlap area, its purported acquisition had come about by the Keeper's unintentional re-drawing of the boundary and not in the course of the processing of an application intentionally made for registration following upon a registrable event. It is, rightly, implicit in this submission that a person inaccurately appearing in the register as proprietor of certain subjects is ex hypothesi not the "true" proprietor, the whole purpose of section 9 being to rectify inaccuracies, including inaccuracies as to the identity of proprietors and as to the extent of their proprietorial interests. But the submission would exclude from the designation of proprietor a person whose ex facie status as such arose otherwise than in the course of the processing of an application for registration. I am unable to accept that exclusion. Just as I see no reason in the statutory provisions to restrict by the manner of their occurrence in the register the scope of inaccuracies rectifiable under section 9(1), I see no reason to restrict by that manner the scope of "proprietor" within the meaning of section 9(3). Indeed, such a restriction would, in my view, have unfortunate consequences. An inaccuracy in the register may only be recognised many years after its first appearance there; many transactions may meantime have been carried through on the faith of what appears in the register. What appears there is commonly relied on by purchasers and others both for the identity of proprietors and for the extent of their respective interests. If an inaccuracy emerges, the manner in which it first arose is of no importance. The issue is whether, having regard to the policy of the statute, the current (apparent) proprietor should be deprived of his proprietorial status. That turns on whether he is at the relevant time "in possession".

[72] There is a specialty in this case to which our attention was drawn. The digital alteration of the boundary of REN56654 occurred within the Keeper's office in about July or August 1997. The disposition dated 30 September 1997 by Mr. Johnston in favour of Safeway bore to convey, under an exception unimportant for present purposes, "the subjects registered in the Land Register under title number REN56654". Accordingly, as a matter of property law, a personal right to the larger subjects, including the as yet unregistered overlap area, was then purportedly granted - even if neither the disponer nor the disponee was then aware of that fact. An application was thereafter made on behalf of Safeway to the Keeper for registration and that application granted. It was suggested in argument that on completion of that process a real right to the larger subjects was then vested in Safeway. While the suggestion is interesting, I prefer, in the absence of sight of the relative application form and of fuller argument on this aspect, not to rely on this specialty.

[73] However, for the reasons earlier given Tesco's cross appeal, in my view, fails.

[74] The issue in the principal appeal is whether Safeway was, at the relevant time, "in possession" of a proprietorial interest encompassing the overlap area. The concept of "possession" in respect of heritable property is familiar. But, as Lord President Rodger observed in Kaur v. Singh 1999 S.C. 180 at p. 193G-H, terms such as possession have a wide range of meanings and one must always have regard to the particular context in which they are used. In the passage immediately following, his Lordship contrasted the roles of possession in the 1979 Act with that of possession in the Prescription and Limitation (Scotland) Act 1973. A contrast might also be drawn with the use, illustrated by Hunter v. Hardie (1630) M. 13793, of possession to validate a base infeftment granted prior to the establishment of the public registers. That case is cited, among others, in Stair -Institutions II.1.13 as vouching the proposition that in certain circumstances possession of a part of heritable subjects may constitute possession of the whole. "Where the earth began to be divided by limits and bounds and to have certain denominations", then possession of the whole (defined subject) was attained "by exercising possessory acts upon a part". In Hunter v. Hardie the required circumstances were met by the lands in question being a unum tenementum, that is, a single estate proceeding on a charter which identified sufficiently the bounds of the lands in question. The proposition that possession of the whole is constituted by possession of a part is, as Stair observes, also subject to the qualification "unless there are contrary possessory acts".

[75] Counsel for Safeway placed some reliance on the passage from Stair, equiparating the map-based description in Safeway's title sheet to a bounding description with the result, he argued, that Safeway's undisputed possession of the balance of the subjects within that description constituted possession also of the disputed area. The argument has some attraction but there is a danger, in my view, of being diverted from a true interpretation and application of the statutory provision presently in issue by drawing inexact analogies with other contexts in which "possession" is significant for legal purposes.

[76] Parliament has, by section 9(1), made provision for the rectification of inaccuracies in the register but has qualified that provision by subsection (3) in the manner earlier described. The Keeper's power to rectify and the ability of the court or the Lands Tribunal for Scotland to order rectification is restricted "if rectification ... would prejudice a proprietor in possession". An "inaccuracy in the register" may, as here, include an entry in it which is erroneous as to the person in right to the subjects in question or as to the geographical extent of that right or in other ways. The purpose of rectification will be to secure that the "true" position is reflected in the register. As Lord President Rodger explained in Kaur v. Singh at p. 182D:

"Precisely because the aim of land registration is that people should be able to rely on the registered titles, a high degree of stability in the register is desirable. Such stability would be threatened if rectification of the register were too readily available. So, a balance has to be struck between those situations where inaccuracies will be rectified and those where the entry in the register will not be altered and the person suffering loss as a result will have to make do with indemnity for his loss".

As his Lordship noted in the following paragraph, the line between the availability and the non-availability of rectification is in the Scottish system drawn by reference to the expression "a proprietor in possession". The terms of the statute provide little assistance in divining what precisely Parliament had in mind by that expression. But in Kaur v. Singh at p. 194, in describing the role of possession for the purposes of this statute, Lord President Rodger said:

"Possession is then relevant, not because it shows that the registered proprietor has a better claim to the title, but because, for reasons of policy, the law chooses not to disrupt the proprietor who is in possession".

Although his Lordship had (at pp. 191H-192B) earlier made certain observations on the concept of "possession" for present purposes, the "reasons of policy" are not elaborated, that being unnecessary in the circumstances of that case.

[77] In my view it is necessary, in the circumstances of this case, to make some attempt to divine what the legislature had in mind by a proprietor "in possession" who ex hypothesi does not "truly" have the right accorded to him on the register but whose possession (and registered proprietorship) is nonetheless, as a matter of policy, not to be disturbed. In my view the term "in possession" in this statutory context imports some significant element of physical control, combined with the relevant intent; it suggests actual use or enjoyment, to a more than minimal extent, of the subjects in question as one's own. It is a "proprietor" who has, on the faith of the register, had such enjoyment or use who is protected against rectification. A "proprietor" who has not had such enjoyment or use is not so protected and may require to seek his remedy, if any, in the form of indemnity. Where the issue of possession relates only to part of registered subjects, the matter for determination will be whether the "proprietor" is in possession of that part, either directly itself or as an integral element of the registered subjects viewed as a whole. The existence of physical features on the ground, including natural physical boundaries, and the activities of the "proprietor" within or beyond such features may be material to what inference may properly be drawn as to the extent of his possession.

[78] In many cases it may be a nice question whether a registered proprietor is "in possession" in that sense. The resolution of that question will turn on the particular circumstances; the issue may become one of fact and degree. Because "possession" involves the dual requirements of "an act of the body" (by physical detention or holding) and "an act of the mind" (for one's own use, otherwise than in circumstances which, in the case of moveables, would infer theft) - Stair - Institutions II.1.17 - these elements, which are interrelated, will both be relevant to the resolution of the question. "Possession" in the relevant sense is

"the having or holding a thing within the possessor's control, with the intention of holding it as his own property ... " (Rankine - Land-Ownership pp. 3-4).

[79] Safeway's third ground of appeal, while placed last, logically should be addressed first. Although it states that the Tribunal erred in law by holding that the evidence led in relation to the overlap area was "insufficient" to amount to possession for the purposes of section 9, the submission as developed before us was that, on the facts found by it, the Tribunal was bound to hold that Safeway was at the relevant time "in possession" of the relevant subjects. It was on this basis that counsel for Safeway, under reference to this ground of appeal, not only invited this court to allow the appeal and reverse the Tribunal's decision but also to sustain Safeway's second and third pleas-in-law to the effect of refusing Tesco's application for rectification.

[80] There was some discussion before us as to the appropriate time at which the issue of whether or not Safeway was "in possession" fell to be determined. Although the Keeper was alerted to the issue from about September 1998 and appears in the succeeding months to have reached certain views and made certain decisions, the formal application to him by Tesco for rectification of Safeway's title was made, according to the pleadings, on 5 October 1999. The Keeper's decision not to rectify it was communicated by letter dated 29 October 1999. It is clear, however, that the issue of possession should not be looked at only as at October 1999 but over an appropriate tract of time preceding that month.

[81] The position adopted on behalf of Safeway before this court was that at least the primary period of interest for this purpose was that which preceded what counsel categorised as a "tennis match", that is, a process of assertion and counter-assertion of right evidenced by communications between parties' solicitors and by certain actings on the ground. As I understood the submission, the "tennis match" opened some time in September 1998, by which time solicitors on either hand were in correspondence making competing claims; the match continued thereafter without interruption. Prior to the opening of the match, poles had, on 7 August 1998, been placed in the river-bed on Tesco's instructions, although at the time of that placement Tesco was not, on the Tribunal's findings, aware of the mistake in Safeway's title. On the basis of Safeway's presentation of its case, its possession of the subjects falls to be determined essentially by reference to events occurring and attitudes evinced between June 1998 (when it or its agents first became aware that its title as entered on the register included the overlap area) and the commencement of the tennis match in September of that year. The third ground of appeal proceeds on the basis that, having regard to that tract of time and to the Tribunal's findings of fact in relation to the overlap area, the Tribunal was bound to conclude that Safeway had the requisite possession; its failure so to conclude was on that basis, so the argument ran, an error of law.

[82] In my view this ground of appeal must be rejected. Possession requires, as I have said, both a mental and a physical element. I am prepared for present purposes to assume, without deciding, that, in the case of a corporate body, the requisite mental element may include the state of mind of an independent agent, such as a professional member of a company's development project team, and is thus not restricted to that of directors or other officers of the company. On that assumption Mr. Lyttle, and perhaps other such agents of Safeway, held during the requisite period a belief that the overlap area was, or at least might be, within Safeway's property. The steps which they took against that belief were taken with a view to exploiting that believed proprietorship for the benefit of Safeway (by providing access to the development site by means of a less expensive structure). But, in my view, the steps taken by these agents fell short of constituting the necessary physical element for possession. The making, in offices remote from the site, of plans for an alternative structure and the making of relative enquiry of the local planning authority cannot, in my view, constitute physical acts of possession of the site; nor, in the circumstances of this case, can the carrying out of survey operations which involved no physical presence or activity on the site (or on or in the waters covering it). Even if the latter operations had occurred prior to the initial placing of poles by Tesco, I would have found serious difficulty in regarding them as sufficient to constitute, in the circumstances of this case, the requisite physical element of possession. But, given that they occurred only after Tesco had taken physical steps on the site publicly asserting proprietorship of it, these steps are, in my view, even less apt to constitute physical acts of possession capable of sustaining that exclusivity which is a necessary quality of the requisite possession. In my view, on the primary facts found by the Tribunal and due regard being had to the nature of the overlap area as a small piece of a river-bed covered by running water, Safeway at no time prior to the commencement of the "tennis match" had such actual use and enjoyment of it as to amount to being "in possession" for the purposes of section 9(3). The Tribunal was not bound to hold that it had. It was not seriously suggested that anything which occurred thereafter gave Safeway such possession.

[83] As regards the first ground of appeal, I agree with your Lordship in the chair that the Tribunal did not misdirect itself as to the true issue to be addressed. While inevitably the disputant positions of Safeway and Tesco (including acts arguably of possession and of counter-possession) had to be considered, on a fair reading of the Tribunal's decision it properly identified the issue on this aspect of the case as being whether Safeway was "in possession" and came to a view on that issue which, on the evidence led and the facts proved, it was entitled to reach. While there may be certain formulations by the Tribunal (such as at p. 36I-J) which may be suggestive of an approach more appropriate to prescriptive possession than to possession for the purposes of section 9(3), I am not persuaded that the Tribunal materially misdirected itself on this aspect.

[84] As to the second ground of appeal, the Tribunal did not, in my view, err in law in relation to the appropriate focus for attention in the matter of possession. It rightly regarded the proper focus as being on the land itself and directed its consideration to the evidence "bearing directly or indirectly on occupation" of the overlap area. That approach did not ignore consideration of activity occurring beyond the confines of the overlap area itself. Where the dispute concerns whether a person is in possession of part of larger subjects which he owns, it will be relevant to take into account not only the nature of the disputed part (including such opportunities as that nature may afford for possessory acts on it or in respect of it) but also how that disputed part relates to the subjects as a whole (including possessory acts on the balance of the subjects). When this court enquired in the course of the hearing of the appeal as to the general character of any evidence led before the Tribunal and not recorded in its determination which it was claimed the Tribunal had incorrectly left out of account, counsel responded by indicating that that related to visits made on a weekly basis to the landward part of the site and to the activities of joiners and security guards on various occasions on that part. None of this conduct, so far as appears, was related to advancing the realisation of access by a straight, as against a curved, bridge. If that was the general character of the evidence, I can readily understand why the Tribunal makes no reference to it. As I see it, such evidence could not bear usefully on the issue for determination. Where that issue concerns whether or not a proprietor has been in possession of subjects extending beyond their "true" boundary, the focus will inevitably and properly be on his possession (if any) of the area beyond the "true" boundary. Such a focus will not ignore the subjects as a whole nor how their enjoyment and use relates to the extension area; but activities on the balance of the subjects which have no apparent bearing on the extension area can be of little, if any, significance. On the other hand the focus for any issue of prejudice arising in relation to the application of section 9(3) may be quite different. In my view the Tribunal did not err in its identification of the critical focus nor in its consideration of the evidence which was relevant to the issue for its determination. The second ground of appeal accordingly also fails.

[85] For these reasons I also would refuse the principal appeal.

Safeway Stores Plc v. Tesco Stores [2003] ScotCS 171 (06 June 2003)

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Osborne

Lord Hamilton

Lord Kingarth