Scottish Court of Session Decisions

Rutco Incorporated v. Jamieson & Anor [2004] ScotCS 213 (07 September 2004)

[1]     The pursuers were, until after the raising of the present action, heritable proprietors of lands known as Gannochy Estate in the County of Angus. They have now sold the lands of that estate, under exception of the area to which the action relates. The estate is principally a sporting estate. The defenders are trustees acting under a Deed of Trust known as HNL Keswick's Settlement, and are proprietors of Hunthill Estate. The defenders' estate is also principally a sporting estate, and borders part of the Gannochy Estate.

[2]     The present action relates to an irregular-shaped area of ground known as the Shank of Freoch, a hillside extending to some 400 acres. Its principal uses are grazing sheep and the shooting of game. The pursuers contend, in the first place, that they and their predecessors in title have possessed the dominium utile or ownership of the Shank of Freoch openly, peaceably and without any judicial interruption for a period in excess of ten years and that said possession has been founded on, and followed upon, a Disposition by Jean Foster and another in favour of Tinicum Agricultural Enterprises Inc dated 21 December 1981 and recorded in the General Register of Sasines for the County of Angus on 29 December 1981 ("the founding Disposition"), and accordingly that their title is exempt from challenge in terms of Section 1 of the Prescription and Limitation (Scotland) Act 1973. They seek declarator to that effect in the first conclusion. The defenders, who claim title to the Shank of Freoch under and by virtue of a Disposition by Dalhousie Estates Limited in favour of The Honourable David Healy-Hutchison dated 12 December 1952 and recorded in the relevant Register of Sasines on 16 December 1952, (by which Disposition, the pursuers accept, the disputed area was indeed apparently conveyed) maintain that the title on which the pursuers found is not habile to include the Shank of Freoch. The pursuers' claimed possession thereof is, in any event, not admitted. The pursuers further maintain that, in any event, by letters passing in June and July 2000 between the parties' solicitors it was agreed that the defenders would convey the Shank of Freoch to the pursuers for no consideration. They seek declarator to that effect in the second conclusion. The defenders do not accept that a binding agreement to that effect was reached. In addition, the pursuers, based on their averments as to title, and on the said agreement, further seek interdict against the defenders from doing any acts upon the disputed land without the pursuers' consent.

[3]     The matter came before me on procedure roll. Senior and junior counsel for the defenders advanced argument, in support of their general plea to the relevance, to the effect that there were no relevant averments to support the first declaratory conclusion. They accepted that otherwise the case would require to go to proof before answer. They moved me to sustain their third plea-in-law which is in the following terms: "The pursuer and its predecessor in title not having title to the land of the Shank of Freoch, decree of declarator shall not be pronounced as first concludes". They also moved me to repel the pursuers' first plea-in-law and to refuse the first conclusion. The primary position of senior counsel for the pursuers was that a proof before answer should be allowed in relation to the whole case.

[4] The structure of the founding Disposition is that it bears to dispone three areas of land, described "(In the First Place)", "(In the Second Place)" and "(In the Third Place)". The land disponed "(In the Second Place)" is described as:

[5]     It is agreed between the parties that the Shank of Freoch was included both within the area delineated in red on the plan annexed, and within the boundaries coloured purple on the plan annexed and signed as relative to the Feu Disposition referred to in favour of the Trustees of the Foster Marriage Settlement dated Fifteenth June and recorded on 5 July 1961.

[6] In the said Feu Disposition ("the 1961 reference Disposition") the grantor stated that he had:

[7]     The question for the Court was whether it could be said that the founding Disposition was capable, or susceptible, of being construed as conveying title to the Shank of Freoch. Reference was made to Auld v Hay 1880 7R 663, North British Railway Company v Hutton 1896 23 R 522, Cooper's Trustees v Stark's Trustees 1898 25 R. 1160, Brown v The North British Railway Company 1906 8F 534, Troup v Aberdeen Heritable Securities & Investment Company Limited 1916 SC 198 and Suttie v Baird 1992 SLT 133. It could not be said that the title on which the pursuers founded was capable of being so construed. Rather it was clear that the possession which the pursuers sought to prove was inconsistent with their title. On the only reasonable and proper construction of the founding Disposition, what was conveyed "(In the Second Place)"was what was "disponed by" the 1961 reference Disposition. The plan attached to the founding Disposition was expressed to be demonstrative only. On the only reasonable and proper construction of the 1961 reference Disposition what was disponed did not include the area hatched in black on the plan annexed. The Shank of Freoch was hatched in black on that plan. Although admittedly the Shank of Freoch did not then belong to the Trustees acting under the 1951 Trust Deed (and thus there was a tension between the language of the description and the plan), it was clear that the plan was used to define what was and what was not disponed. The language of the description made no reference to boundaries or measurements. While there were no hard and fast rules of construction (reference being made to Gordon on Scottish Land Law (2^nd Ed) Para. 4 -08 and Craigie's Conveyancing - Heritable Rights (3^rd Ed., Pages 108 - 109), there were cases which showed that, in appropriate circumstances, a plan could be taken to rule, even if in apparent conflict with a written description. Reference was made to Sim v Stewart 1827 5S. 841 and North British Railway Company v Moon's Trustees 1879 6R. 40. Part of the legend on the plan annexed to the 1961 reference Disposition referred to the area hatched in black as representing "....the extent of the lands affected by the Dalhousie 1951 Trust" - suggesting, on the face of it, that the grantor thought that all of the hatched area was owned by the Trustees acting under the 1951 Trust Deed. To construe the 1961 reference Disposition as conveying the Shank of Freoch would be inconsistent with the fact that it was the defenders, and not the disponer, who then had title to it.

[8]     In light of the cases referred to the pursuers did not need to show that the construction for which they contended was the only one, or necessarily the best, provided that their title was capable, or susceptible, of being so construed; that is that the construction was one reasonably possible. In addition to the cases to which counsel for the defenders had referred reference was made to Beaumont v Lord Glenlyon 1843, 5 D. 1337, Hetherington v Galt 1905 7F 706 and Nisbet v Hogg & Another 1950 SLT 289. It could not be said, particularly at this stage pending proof of various matters which the pursuers sought to establish, that the pursuers' title was not habile to found their possession of the Shank of Freoch for the prescriptive period. It was recognised in some of the authorities, notably in Auld v Hay and Cooper's Trustees v Stark's Trustees, that evidence of possession could be relevant in a question of construction.

[9]     The proper construction, or at least a reasonable construction, of what was conveyed in the 1961 reference Disposition (and thus what was disponed in the founding Disposition) was that the Shank of Freoch was included. It was, it was agreed, included within the boundaries coloured purple on the plan annexed. So far as the first exception was concerned it was agreed that the Shank of Freoch did not then "belong" to the Trustees acting under the relevant 1951 Deed of Trust. The pursuers offered to prove, not merely that the land then belonging to the relevant Trustees was the land conveyed in a Disposition by Dalhousie Estate Limited in favour of the Trustees dated 27 June and 1 July 1955 and recorded in the relevant General Register of Sasines on 30 June 1956, but also that that land was all of the land shown as hatched in black on the plan annexed to the 1961 reference Disposition excluding the Shank of Freoch. The pursuers further offered to prove that this land, belonging to the Trustees acting under the 1951 Deed of Trust, was conveyed by these Trustees to the Trustees of the Foster Marriage Settlement Trust by Feu Disposition dated 15^th, 20^th and 21 June 1961 and recorded on 5 July 1961 - that is, at or about the same time as the 1961 reference Disposition. Although there appeared to be a tension between the language of what was excepted and the whole of the area shaded black on the plan annexed to the latter deed, the language, which was clear, and which appeared first, and which the plan was apparently designed to illustrate, should rule. Although there were no hard or fast rules, in general words of description, if reasonably clear, should prevail over the indications of a plan. Reference was made to Halliday Conveyancing Law & Practice (2^nd Ed.) Para. 33-13 and Gordon, Scottish Land Law (2^nd Ed.) Para 4 - 08. The tension between the language and plan was in any event only apparent, since on the plan the Shank of Freoch was also over-coloured in blue. There was nothing in the 1961 reference Disposition to indicate that an area so coloured was excepted. To construe the 1961 reference Disposition as conveying the Shank of Freoch would appear to accord with general circumstances at the time. In particular part of the legend on the plan suggested that the area coloured blue (the Shank of Freoch) was "an area over which shootings are let to Hunthill ....". This appeared to indicate that the Shank of Freoch was understood to be owned by the disponer. By contrast, the reference to "lands affected by the Dalhousie 1951 Trust" was equivocal.

[10]     Even if that was wrong, there were strong arguments in favour of the proper construction (or at least a reasonable construction) of the founding Disposition being that the Shank of Freoch was conveyed by it. There were a number of factors in favour of such a construction. The conveyance (In the Second Place) began as a conveyance of "the lands and estate of Gannochy". The pursuers sought to prove that, as at December 1981, the Foster Marriage Settlement Trustees had possessed the Shank of Freoch as part of the lands and estate of Gannochy (which they had acquired in two parts in 1961) "for many years" (and that that possession has been maintained by the pursuers' predecessors in title and by the pursuers since.) Insofar as it was declared that the whole boundaries of the subjects disponed "shall, notwithstanding the boundaries shown on the last mentioned plan be the boundaries as possessed by us", it was clear that the intention was that it should not be regarded as a bounding title. The plan annexed (which included the 400 acres or thereby of the Shank of Freoch within the red delineation) was plainly illustrative of an intention to convey the Shank of Freoch. It was, in any event, within the boundaries coloured purple on the plan annexed to the 1961 reference Disposition, the land within which boundaries was said, in that deed, to be the lands and estate of Gannochy. The only contrary indication (on the hypothesis on which this part of the argument was based) was the words "disponed by" where they appear in the phrase "All and Whole the lands and estate of Gannochy in the Parishes of Edzell and Lethnot and Navar and County of Angus all as described in, disponed by and shown delineated and contained within the boundaries coloured purple on the plan annexed and signed as relative to" the 1961 reference Disposition. There was, however, good reason to suppose that the words "described in, disponed by" were used in the sense of described as disponed by. There was no reference in the founding Disposition to any of the exceptions previously made in 1961 from the conveyance of the lands and estate of Gannochy. Instead the first exception to the land disponed (In the Second Place) was "the subjects (In the First Place) hereby disponed". This, the pursuers offered to prove, was the land which belonged at the date of the 1961 reference Disposition to the Trustees acting under the 1951 Deed of Trust. There would be no need to except these subjects in the founding Disposition if it was already clear that exceptions from the 1961 reference Disposition were not included. The same could be said of the exception in the founding Disposition of Auchmull Wood, which also formed an exception to the land conveyed in 1961.

[11]     I have come to the view that the pursuers' arguments are to be preferred.

[12]     It is clear that a party seeking to establish right to land by proof of possession founded upon a habile title does not need to show that the land was in fact conveyed by that title, or that the proper and only reasonable construction is to that effect. Rather, it seems plain, it is enough to show that that title in question is capable, or susceptible, of being construed in a way consistent with the possession which has followed. Only a title "obviously and indubitably exclusive" (such as, for example, a bounding title) could not form the basis of possession beyond its terms, (see e.g. the Lord Justice Clerk (Macdonald) in Cooper's Trustees v Stark's Trustees). In Brown v North British Railways Company Lord Kyllachy said (at page 543) that the question was whether "upon any reasonable construction" the title covers the ground in dispute. In Auld v Hay at page 668 the Lord Justice Clerk (Moncrieff) said "A habile title does not mean a charter followed by sasine, which bears to convey the property in dispute, but one which is conceived in terms capable of being so construed. The terms of the grant may be ambiguous, or indefinite, or general, so that it may remain doubtful whether the particular subject is or is not conveyed, or, if conveyed, what is the extent of it. But if the instrument be conceived in terms consistent with and susceptible of the construction which would embrace such a conveyance, that is enough, and forty years possession following on it will constitute the right to the extent possessed". More recently these passages were quoted with approval by the Lord President (Hope) in Suttie v Baird, at page 136.

[13]     Against that background, it is accepted, having regard to the terms of the founding Disposition, that if one reasonable construction of the 1961 reference Disposition is that the Shank of Freoch was conveyed by it, the founding Disposition would constitute habile title for the purposes of the possession which the pursuers seek to prove. There is no doubt that the Shank of Freoch was contained within the boundaries coloured purple on the plan annexed to the 1961 reference Disposition and that therefore it was conveyed by that deed unless excepted within it from the conveyance. In relation to the first express exception there is an apparent tension between the language of the disposition and the area shown hatched as black on the plan annexed. The language excepts "from the said lands and estate" (i.e. the lands and estate of Gannochy.... delineated and contained within the boundaries coloured purple .....) "that part thereof belonging to the Trustees acting under a Deed of Trust granted by me dated 31 March and registered in the Books of Council and Session on 26 July both in the year nineteen hundred and fifty one and conveyed or about to be conveyed by the said last mentioned Trustees to the said Herbert Frederick Brudenell Foster, Anthony Biddulph and Gordon Nicholson Hunter as Trustees aforesaid...". It is accepted that the Shank of Freoch did not then belong to the Trustees acting under the relevant 1951 Deed of Trust. By contrast, the pursuers seek to prove that the relevant Trustees then owned all of the area shown hatched in black on the plan annexed of 1961 reference Disposition except the Shank of Freoch, and that what they owned was then or shortly thereafter conveyed to the Foster Marriage Settlement Trustees. Against that it is accepted that the area hatched in black on the plan appears to extend to cover the Shank of Freoch. The Shank of Freoch, however, is also over-coloured in blue on the plan and there is nothing within the Disposition to say what significance that might have. There is, in particular, no statement that any area not only hatched in black but also coloured in blue was to be excepted from the conveyance. In these circumstances alone, in my view, it cannot be said that it is an unreasonable construction that the Shank of Freoch was conveyed by the 1961 reference Disposition.

[14]     Further it cannot, in my view, be said to be an unreasonable approach to construction to seek to reconcile any difference between the language of the disposition and the plan by preferring the language, which, it seems clear, does include the Shank of Freoch. There are, it was agreed, no hard and fast rules of construction in such cases. If anything, words description, if clear, are taken to be controlling. In Gordon on Scottish Land Law (2^nd Ed.) it is said (at paragraph 4-08) "In general it would seem that a verbal description of the boundaries will be regarded as controlling the extent of the land granted and as over-ruling other conflicting indications....." (and see also Halliday Conveyancing Law & Practice (2^nd Ed.) (at paragraph 33.13). That is not to say that the 1961 reference Disposition could not be construed in the way for which the defenders contend; indeed many of their arguments in this respect appear to me to be reasonably strong. But if I ask myself the question whether the 1961 reference Disposition is susceptible of a construction which would convey the Shank of Freoch I cannot, at least at this stage, say it is not.

[15]     I should add that although both counsel sought in different ways to take advantage of certain writing in the legend accompanying the plan annexed to the 1961 reference Disposition, I am not persuaded that it is appropriate to do so. In the first place it is not clear, as senior counsel for the defenders appeared to accept, precisely when, by whom and for what purpose the plan was originally made. Secondly, the references to "....area over which shootings are let to Hunthill....." and "....the lands affected by the Dalhousie 1951 Trust" are both, in my view, equivocal.

[16]     Even if I am wrong thus far, and the defenders' approach to the construction of the 1961 reference Disposition is to be preferred, I am unable to say that on no reasonable construction could it be said that the Shank of Freoch was conveyed by the founding Disposition in 1981. That is not because general words relating to the lands and estate of Gannochy appear at the outset. As in 1961, these words are, it seems, qualified by reference to the land delineated and contained within the boundaries coloured purple on the plan annexed to the 1961 reference Disposition. Nor, in my view, is the position much advanced (at least looking at this factor separately) by the declaration that "the whole boundaries of the subjects hereby disponed shall, notwithstanding the boundaries shown on the said last mentioned plan be the boundaries as possessed by us". This may indeed indicate that what was described as being conveyed was not intended to be taxative (and that the boundaries as described could yield, at least at the margins, to evidence of possession on the ground) but it cannot, in my view, assist as to what were the boundaries of the subjects disponed. These were described, initially at least, in relation to the land conveyed (In the Second Place), by reference to the 1961 reference Disposition. Evidence of possession may assist construction where there is an ambiguity, but it cannot be used to create one.

[17]     On the other hand, the plan attached to the founding Disposition does include all 400 acres or thereby of the Shank of Freoch. That plan, of course, was declared to be demonstrative only, and would not take precedence over words of description, if they indicated clearly that a smaller area was being conveyed. As to that, there seems to me to be a real measure of doubt. Certainly if the words "All and whole the lands and estate of Gannochy in the Parishes of Edzell and Lethnot and Navar in the County of Angus all as described in, disponed by and shown delineated and contained within the boundaries coloured purple on the plan annexed and signed as relative to" the 1961 reference Disposition exclude the Shank of Freoch, they would describe an area smaller than that delineated red on the plan. The defenders' submission is that they do, because the Shank of Freoch was not "disponed by" the 1961 reference Disposition, being excepted from that conveyance. On this approach to the 1961 reference Disposition, the Shank of Freoch was excepted from "the said lands and estate of Gannochy" which were otherwise disponed. The whole of said lands and estate were, however, described as "all as delineated and contained within the boundaries coloured purple on the plan annexed.....". The relevant part of the founding Disposition uses the same language, referring in particular to the lands conveyed "as delineated and contained within the boundaries coloured purple etc.....", but does not, either as a matter of language or by reference, for example, to the area shown hatched in black on the original plan, refer to the exceptions made in 1961. This, on any view, it seems to me, creates a difficulty for the defenders' approach. It would mean that one of what counsel described as the three qualifications built into the relevant words of description was not, strictly speaking, met. Further, the founding Disposition goes on expressly to except, so the pursuers offer to prove, two areas of land which it would not be necessary to except if the defenders' construction of the opening part of the conveyance "In the Second Place" was correct; these two parts (the land belonging to the Trustees acting under the 1951 Deed of Trust and Auchmull Wood) having been excepted from the 1961 conveyance. In these circumstances it seems to me that it cannot be said to be unreasonable to construe the words "described in, disponed by" as meaning described as disponed within the 1961 reference Disposition (which was what was said of the whole of the lands and estate of Gannochy, including the Shank of Freoch, in the opening part of that deed). This would enable the plan annexed to the founding Disposition and the description within it to be read consistently together, and would make complete sense, if the pursuers can prove their averments, of the declaration that the boundaries of the subjects conveyed were "as possessed by us".

[18] In all the circumstances, and as invited by senior counsel for the pursuers, I shall allow a proof before answer in relation to the whole case.