Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2009] CSOH 126
A681/07	OPINION OF LORD MALCOLM in the cause CLYDESDALE HOMES LIMITED Pursuers; against (FIRST) ANGELA QUAY; (SECOND) MARIO MIGUEL DE AGUIAR Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuers: McShane, advocate; Morton Fraser

Defenders: John Robertson, advocate; Thorley Stephenson

10 September 2009

[1] This action concerns a dispute over the ownership of a small triangular area of ground. The background circumstances are not controversial. Until about March 2002 the subjects at 52 Carnwath Road, Braehead, Forth, Lanark were owned by Mr John Robertson, who is a director of the pursuers. They were registered in the Land Register for Scotland under title LAN93453. They included a dwellinghouse, certain buildings and an area of land which was used as a builders yard. In 2002 Mr Robertson placed the house on the market but retained the bulk of the yard. At that time the first defender was married to Mr Russell Wightman. They purchased the house along with some land. That purchase is recorded in the Land Register for Scotland relative to title LAN157956, with the boundaries edged red in the title plan. The Keeper of the Registers of Scotland has not excluded indemnity in respect of the property. Subsequently the first defender and her husband separated and divorced. The first defender continues to occupy the house, now along with the second defender. Since January 2008 both defenders have been registered in the proprietorship section as being the heritable proprietors in common of title LAN157956.

[2] The pursuers contend that the disposition by which the house was conveyed to the first defender and her then husband purported to convey a small area of ground which forms part of an adjacent property, known at that time as 46 Carnwath Road. The problem arises from an alleged error in the feu plan attached to the missives and the disposition. The pursuers aver that the boundaries set out in the title plan relative to LAN157956 do not repeat this alleged error. Both parties accept that the extent of the defenders' property is as defined in that title. It is the suggested discrepancy between the title plan and the feu plan which explains and sets the context for the current dispute.

[3] After the sale of 52 Carnwath Road the pursuers acquired title to the adjacent property at number 46. The relative entry in the Land Register for Scotland is under title LAN28356. The pursuers are a building company. Following their acquisition the company constructed houses on that land and on that part of the former number 52 which Mr Robertson had retained. The new houses are approached by means of the access road to the former dwellinghouse, number 46. That road, now known as Moss Way, runs alongside the defenders' property. The new houses have been sold, however the pursuers retain title to the access road. The pursuers have erected a fence along the west side of Moss Way which the defenders claim encroaches onto their land. The pursuers now seek a declarator and related remedies on the basis that there is no such encroachment.

The evidence

[4] At a proof the first witness for the pursuers was Mr John Robertson. He explained that work on the new development began in 2005. 46 Carnwath Road is now known as 4 Moss Way. The pursuers erected a fence running along the western boundary of Moss Way. In or about February 2006 Mr Robertson became aware that the first defender had removed parts of the fence thereby opening up a gap in the boundary between her property and the road. Miss Quay insisted upon the boundary to her property as set out in the said feu plan, which would have projected her property about 2 metres beyond the fence. In particular she claimed that in accordance with the feu plan the length of the boundary at the north-east of her property running from an oil tank to Moss Way should be 40 metres, whereas the actual length after construction of the new fence was only 37.5 metres.

[5] Mr Robertson said that when the fence was constructed the corner post at the eastern end of the said boundary was placed in the exact position of an old fence, which was removed in the course of the works. He insisted that there was a fence on that boundary, albeit it was covered in bushes. He understood that to be the mutual boundary. The first defender raised an action in Lanark Sheriff Court. In due course the current action was raised, and in October 2007 the pursuers obtained interim interdict preserving the status quo, namely the new fence as erected by the pursuers. Mr Robertson was concerned that if the access road was narrowed, emergency and larger vehicles would be prevented from gaining access along Moss Way.

[6] Under cross-examination Mr Robertson explained that the feu plan attached to the disposition contains an error, namely in describing the aforesaid boundary as extending to "40 metres or thereby". He denied the suggestion of counsel for the defenders that the new fence was placed inside the line of the old fence. He insisted that the new fence was erected immediately after the removal of the old fence. He was there and saw that the new fence was erected in the same position as its predecessor. He accepted that he had attempted to negotiate extra land in this area from the first defender, and that at another location a new fence had been placed in the wrong position. In re-examination Mr Robertson stressed that the location of the corner post was specifically marked by a sizeable hole created in order to contain the concrete base for the new post. At that time he could still see the line of the old fence. The second and final witness for the pursuers was a chartered surveyor, Mr Stewart McKenzie. I will discuss the expert evidence later in this opinion.

[7] Counsel for the defenders led evidence from Miss Quay. She explained that the area of the disputed boundary consisted of bushes and trees. Mr Robertson originally wanted access to the new development on land on the other side of her house, however the landowner would not permit it. Miss Quay was concerned that Mr Robertson had never made clear the nature and extent of his development plans. She had worked for him in the builder's yard, but she had been made redundant. There was no discussion with her before a large digger simply ripped and cleared the land. Certain containers in the area were removed. Miss Quay insisted that there was no fence at that location. She used to walk her dog there. The trees and bushes were all cleared away and the next thing was the fence, which was erected some weeks later.

[8] Miss Quay had the new fence surveyed and it became clear that is was not consistent with the feu plan. On the advice of her solicitor she removed a section of it. In cross-examination she accepted that her position is that the feu plan is correct. She had not checked the feu plan against the plans in the Land Register. It did not occur to her that the feu plan might be wrong. Mr Robertson's signature was on the feu plan and she believed that it defined her ownership. It is clear that the dispute between the parties has generated considerable heat and ill-feeling, as well as an interim interdict in this action and litigation in the local sheriff court. Nonetheless Miss Quay confirmed that if the court finds in favour of the pursuers, she will respect that decision. I am prepared to trust that assurance, which seemed to me to be given in a genuine and sincere spirit.

[9] The second defender gave evidence. He insisted that there was no physical division at the disputed boundary. The area was covered in bushes and trees. He also used to walk the dog in that area. There were two large containers nearby, one blue, one coloured white, which can be seen in the photographs lodged in process. The disputed area is to the left of the blue container. The dog would run around quite freely. There was no fence. The pursuers used a large excavator or digger. The second defender insisted that no fence post was erected. The new fence was erected months later. He compared the location of the new fence with the feu plan, and noticed that the dimensions did not match. The major discrepancy was the length of the aforesaid boundary, namely 37.5 metres as against 40 metres in the feu plan. The fence along Moss Way was measured at 8.5 metres. In cross-examination he complained that the pursuers' work in the area left a scene of devastation "as if a bomb had gone off".

The expert evidence

[10] Stewart McKenzie of Messrs Barr Brady, Chartered Surveyors, prepared a report dated 6 April 2009. Various plans are attached. Paragraph 3 of his report is as follows:

"We enclose a copy of the feu plan attached to the disposition by John Robertson in favour of Mr and Mrs Wightman which has scale dimensions indicated on the plan. Onto this plan we have superimposed, shaded in green, what we consider to be the correct line of the disputed boundary as per the title plans reference LAN93543 and LAN28356. We also attach a supplementary plan which has been enlarged from the feu plan attached to the disposition by John Robertson in favour of Mr and Mrs Wightman onto which we have indicated scaled sizes from fixed points, i.e. the existing properties of 52 Carnwath Road and 4 Moss Way, this property we understand originally being addressed as 46 Carnwath Road. Again we have delineated shaded in green what we consider to be the boundary with reference to the title deeds".

The plans referred to are respectively the appended plans B and A. Plan B identifies the disputed ground, namely the small area that between the boundary marked "fence line" (which was part of the original feu plan) and the green line, which represents Mr McKenzie's understanding of the proper boundary line according to the title plan. The green line coincides with the position of the new fence erected by the pursuers as part of the recent development. The boundary running from the access road to the existing oil tank as marked on plan B should, if Mr McKenzie is correct, be 37.5 metres in length.

[11] Mr McKenzie explained that he determined the position of the green line by a scaling exercise. He made reference to plan D2, which is the title plan for title LAN157956. He then transposed the relevant measurements onto plan D1, which is simply an enlarged portion of part of D2. By way of a similar exercise he demonstrated on plan E the relevant measurements in respect of the new title for 52 Carnwath Road and the old title plan LAN93543. He was asked whether the measurements were checked by reference to other plans. He replied that the dimensions and the plans for 2 and 4 Moss Way were scaled and cross-referenced where the two boundaries meet. At a site inspection he was not permitted access to the defenders' subjects at number 52. However he was allowed entry to the adjacent land and he took measurements from the gable at the northern elevation of 4 Moss Way, all with a view to determining the correct boundary. Measurements from each corner of the facing gables are shown on plan A. That plan shows the dimensions from the dwellinghouse at 4 Moss Way to the defenders' subjects as shown on the ordnance survey plans. By these means Mr McKenzie claimed to have verified the desk exercise which he had carried out using the title plans.

[12] The measurements were also cross-referenced by a scaling exercise concerning the dimensions of the property at number 52. As a further check Mr McKenzie made use of a starnet plan, which is created by computer generated imaging. That plan simply reinforced the conclusions reached by other means. As shown on plan A, given that the houses on the plan are fixed points Mr McKenzie was able to cross reference each corner of the buildings to the green line, albeit the figures to the left of the green line were scaled, not measured. The figures to the right of the green line on plan A were both measured and scaled. This gave Mr McKenzie confidence in respect of his scaling measurements. He concluded that the green line represents the title plan boundary, and that the feu plan does not match the title plan. Further, the feu plan does not correspond with the ordnance survey plans.

[13] Mr McKenzie accepted that so far as the scaling exercise is concerned there is a margin of error of up to one metre, depending on the scale of the plan. Mr McKenzie also confirmed that the green line corresponds with the line of the fence constructed by the pursuers. In paragraph 5 of his report he stated:

"We are of the opinion that the existing fence boundary (physical boundary) corresponds with the line identified between title references LAN28356 and LAN157956. For the avoidance of doubt, we are of the opinion that the existing fence, assuming the section which has been removed was reinstated, follows the line of the mutual boundary and does not extend into ground under title reference LAN28356, i.e. into the existing road which provides access to the new properties constructed forming part of Moss Way".

[14] In cross-examination Mr McKenzie accepted that the land registration plan is based on the ordnance survey, and that ordnance survey data is not necessarily accurate. The position on the ground can be different. He accepted that the 8 metre line shown on his plans could be marginally longer, perhaps up to 8.5 metres. Generally speaking he accepted that his measurements and the position of the green line could be "slightly out" in line with the margin for error mentioned earlier. He confirmed that he scaled the other boundary at 37.5 metres. If another surveyor scaled it at 38.75 metres, given the tolerances, Mr McKenzie was prepared to accept that such would be possible. He explained that the boundary was on land belonging to the defenders and others, so he could not measure it. The ideal would have been to measure it. If the actual measurement was confirmed at 37.5 metres that would reveal the length of the current fence, but not necessarily that of the proper boundary according to the title plan. In re-examination Mr McKenzie spoke of carrying out a triangulation exercise under reference to the measurements to the fixed point of the gable end of 4 Moss Way. Using trigonometry this exercise indicated that the aforesaid boundary should be 37.5 metres in length.

[15] The chartered surveyor led on behalf of the defenders was Mr Niall Milner of Messrs Davidson & Robertson Rural. He spoke to three reports dated 7 July 2005, 27 June 2008 and 30 April 2009. In his first report he simply confirmed that the position of the new fence was inconsistent with the boundaries as shown on the feu plan. In particular, and so far as relevant for present purposes, the 40 metre boundary shown on the feu plan had been reduced to an actual distance of 37.5 metres, and the 8 metre boundary had been increased to 8.5 metres. He indicated that plotting the lengths would suggest that the title had been reduced by 7m² at this location. In his second report Mr Milner compared the feu plan with the boundaries as scaled from LAN93543. His scaled measurements of the relevant boundaries were respectively 38.75 and 8.13 metres as compared with 40 and 8 metres in the feu plan. Mr Milner explained that these differences are not surprising given the margins for error in an exercise of this nature.

[16] Mr Milner spoke to his final report which contains his comments on Mr McKenzie's report. The second table on page 2 demonstrates that the very small differences in the measurements of the relevant boundaries on the plan illustrate that there is "not a lot" between the two experts on the critical issues. Mr Milner stated:

"When working backwards from the scaled lengths to provide the plan lengths, it can be shown that I was measuring the lengths to the nearest 0.25mm as per the ruler I have, which has 0.5mm markings. Reversing the Barr Brady measurements would suggest that they rounded the scaled lengths heavily to the nearest metre, or were measuring off the plan to the nearest 0.1mm. I am not aware of normal rulers that allow this level of accuracy. When comparing the differing scaled lengths differences on plan are so small (all less than 1mm on plan) that the matter is very much to the interpretation of the person undertaking the scaling and will be affected by issues such as the quality of the plan they are measuring from (has it been distorted by photocopying, how thick are the lines that have been questioned?) as well as the quality of their ruler (does it have 0.5mm graduations marked, for example?)".

[17] Mr Milner explained that it was "entirely conceivable" that he had erred, or that Mr McKenzie had erred, or that they had both erred. This was part and parcel of the difficulties of working from such small dimensions. He criticised the McKenzie report as a purely desk exercise, though, in the light of Mr McKenzie's evidence, Mr Milner now accepts that some of Mr McKenzie's figures were the result of at the scene measurement. In his report Mr Milner also suggested that 4 Moss Way is a new dwelling, thus he questioned whether its western wall was an exact match for that shown on the dwelling 46 Carnwath Road on LAN28356. Once again Mr Milner now accepts that this comment was erroneous in light of the evidence that such alterations as had been carried out to this building were at the southern elevation.

[18] Mr Milner discussed what he described as "the consistent problem with this case", namely the reliance on ordnance survey data which does not possess the accuracy required to adequately map such small differences in boundaries. Furthermore he explained that since 2005 the ordnance survey had updated their data under the Positional Accuracy Initiative scheme (PAI) which, in layman's terms, now acknowledges that the UK is curved rather than flat. Thus, for example, the plan attached to the LAN93543 title is at best now a rough fit for the ordnance survey's current interpretation of the area around 52 Carnwath Road. In short, the OS data cannot always be relied upon to provide sufficient accuracy when disputes arise over very small areas.

[19] So far as the triangulation exercise carried out in plan A attached to Mr McKenzie's report is concerned, Mr Milner understood the exercise, but the recent changes in the OS data raise question marks as to the extent to which reliance can be placed upon plans, as opposed to detailed measurements on the ground, if and when two houses are used as reference points. In this regard Mr Milner considered it unfortunate that Mr McKenzie was not allowed onto the defenders' property. At the end of his final report Mr Milner concluded that Mr McKenzie's assessment of the north-east boundary at 37.5 metres is 1.25 metres too short, and that his assessment of the eastern boundary is 37 centimetres too long.

[20] In cross-examination Mr Milner accepted that the more reference points used, the more accurate the end product is likely to be; and likewise if the exercise is cross-referenced to physical features on the ground. He agreed that the more title deed plans that are used, the greater the degree of accuracy that can be assumed. In general additional information means more checks and balances, thus a more accurate outcome. In the course of his evidence Mr Milner indicated that when he visited the site he noted the remnants of a straining fence post at the south-west corner of number 52. This was found in the midst of a hedge. He did not explore the rest of the hedge to see if there were other posts or wires.

The submissions for the parties

[21] In his submissions for the pursuers, Mr McShane made reference to the relevant provisions of the Land Registration (Scotland) Act 1979. He noted that the extent of a title is defined by registration, and in particular by the title plan. It follows that a deed such as a disposition which conflicts with the title plan does not prevail. The current dispute requires to be determined by an examination of the OS plan registered as relevant to the title - see section 6(1)(a) of the Act. It follows that Mr Milner's reference to the new ordnance survey system and data is of no assistance. In the absence of measurements on the title plan it was inevitable that there would be an issue of interpretation. Evidence of other matters, such as physical features on the ground, are of secondary importance. Insofar as such features are inconsistent with the title plan, they must be ignored. However if consistent with it, they could help to confirm the proper interpretation of the plan. For example, if the overall position was uncertain, the location of a fence or wall might be of assistance.

[22] Mr McShane described the issue of fact as a narrow one, namely with reference to the "40 metre or thereby" fence line mentioned in the feu plan attached to the disposition, is the correct length 40, 38.75 or 37.5 metres? Mr McShane submitted that anything over 37.5 metres would encroach onto the access road, which belongs to the pursuers. Reference was made to Mr Robertson's evidence to the effect that he had regard to an old fence post at this location. That evidence supported Mr McKenzie's conclusions. The defenders' evidence provided no good reason to disbelieve Mr Robertson, who was specifically focussing upon the exercise being carried out by his company. Reference could also be made to the mention of "a fence line" with regard to the 8 metre boundary on the feu plan, which provides indirect support for Mr Robertson's evidence. In any event, one might well expect a fence post at that location. In all the circumstances the court should accept that the pursuers positioned the new corner fence post in the same place as its predecessor.

[23] Miss Quay's evidence was described as unreliable and of little assistance on the key issues. She had "an axe to grind" given the falling out between the parties and her unhappiness over the new development close to her land. Her understanding of her title is based on the feu plan, which is a clear misapprehension. Even Mr Milner confirms that the feu plan is wrong. Mr McShane described the second defender's evidence as evasive. When walking the dog his main concern would be locating the dog rather than any features on the ground, such as a fence or fence post within the bushes. Again his concept of the title is based on a feu plan.

[24] Even if none of the factual evidence from Mr Robertson and the defenders was accepted, Mr McKenzie's evidence on its own provides a sufficient basis for proof of the pursuers' case. Mr McShane submitted that both experts gave evidence in a straightforward manner. The relevant issue concerns their methodologies and the accuracy of their reports. Both were honest and conceded the limitations in their reports. However the court should prefer Mr McKenzie, and in particular place greater reliance on his methodology. He used three registered titles, namely the old and new 52 Carnwath Road and the old number 46 titles. He confirmed his results by site inspection and a triangulation exercise based upon the rules of trigonometry. All of this was supported by measurements from fixed points. Mr Milner confirmed that the more information that was used, the more accurate the end result was likely to be. Mr Milner simply examined the old and new number 52 titles. He did not cross-refer with LAN28356. Mr Milner carried out no measurements from fixed points to confirm his calculations. It was Mr Milner who confined himself to a desk-based scaling exercise. He only took measurements in the context of the original dispute as to the location of the new fence when compared with the feu plan. He accepted that his conclusions may be inaccurate given the tolerances involved in this kind of exercise. Further it was submitted that the court should disregard Mr Milner's reference to the new PAI System for OS maps, given that the 1979 Act requires the court to confine its attention to the registered title plan. Finally, if and insofar as Mr Robertson's evidence was accepted, this would support Mr McKenzie's conclusions.

[25] Turning to the submissions for the defenders, counsel confirmed that there is no dispute on the law, and in particular as to what can be taken from the 1979 Act. Property ownership is defined by the registered title, and there is no suggestion of any overlap of titles. The issue is - where is the common boundary line? In this regard one simply has the registered title plans. It is not easy to fix the boundary, in large part because of the way the system works, especially when reference has to be made to small scale plans which contain no specific measurements or distances. While the factual evidence from Mr Robertson and the defenders can be taken into account if it assists in respect of any uncertainties or ambiguities in the title documents, this is on the normal basis of extrinsic evidence being used to construe a document. The fundamental task is to construe the deed as a public document. Extrinsic evidence cannot be used if and insofar as it contradicts the document. However, if extrinsic evidence assists in resolving internal ambiguities, then the court can have regard to such matters.

[26] The only relevant conflict between the evidence of Mr Robertson and that of the defenders concerned the possibility of an existing fence or fence posts before the clearance of the site. In any event, even if there was a fence or a fence post, counsel observed that the question remains as to whether it was on the legal boundary. And if there was a pre-existing fence, is the new fence on the same line? Mr Robertson's evidence on these issues was criticised as being uncertain and lacking in detail. The defenders were quite clear that no new fence posts had been erected when they first saw the result of the pursuers' works in the disputed area. On the face of it that contradicted Mr Robertson's evidence. Further, neither Miss Quay nor Mr De Aguiar saw any pre-existing fence or fence posts. It was conceded that they may not have been aware of a dilapidated fence. Counsel for the defenders argued against any presumption that it was likely that there would be a fence in that location. It was submitted that Mr Robertson's manner and demeanour betrayed uncertainty and anxiety when he was discussing the pre-existing fence and fence posts. It may be that he was simply stating what he would have liked to have been the position, rather than his own recollection. He accepted that he had placed a fence in the wrong position at the north-western boundary. He was keen to maximise his land at that location in order to improve the access road to the new houses. He had earlier tried to negotiate some extra ground. It seemed that he did have concerns about the land available to him. Counsel suggested that the picture is of a man who takes what he wants. The fence was located with his access needs in mind rather than with care to an existing boundary. It may be that he did see a fence, bulldozed it down, then months later erected a new fence where he thought the earlier one had been.

[27] Turning to the surveyors' evidence, counsel for the defenders submitted that the difficulty is that the physical measurements were all carried out after the event. Neither surveyor can confirm what was on the ground before the problem arose, only what is there now. No evidence had been led from anyone who took actual measurements before the disputed boundary was subjected to the pursuers' clearance works. The OS map is a prior exercise, however both surveyors said that it is not wholly reliable regarding features on the ground. In addition there is the feu plan. The court can use it to construe the title plan. Mr Milner's measurement of 38.75 metres is closer to the "40 metres or thereby" mentioned on the feu plan, so it may well be more accurate than Mr McKenzie's 37.5 metres. In respect of the "or thereby" qualification in the feu plan, Hetherington v Gault 1905 7F 706 and Young v McKellar 1909 SC140 were cited. Counsel appreciated that no evidence had been led as to how the feu plan was created, and thus there is no evidence before the court as to the level of accuracy which can be afforded to it. The disputed boundary was one of the established boundaries. It was an actual line, not a plotted line. It is shown as a solid line on the OS data which suggests that there was physical feature, perhaps a fence or equivalent. However, it was accepted that court has no direct evidence along the lines of "I measured that boundary and it was 40 metres".

[28] Counsel suggested that the ideal would be if a surveyor had been asked to scale from the title plan before any measurement of the new fence at 37.5 metres was obtained. Is it a coincidence that Mr McKenzie's assessment was the same as the measured 37.5 metre figure? The scaling exercise itself will always be subject to a margin of error. Further the OS data is not absolutely reliable, and that also applies to Mr McKenzie's cross-checking. There will always be an element of personal or subjective interpretation.

[29] The line of any pre-existing fence, if there was one, would provide a cross-check on the title plan, if one had a measurement for it. As it is the only measurement before the court which was obtained before the clearance works is the 40 metres or thereby as mentioned on the feu plan. Some of the measurements in that plan are very precise, so clearly it was intended to be relatively exact. It has the appearance of a properly prepared plan. But for the 1979 Act, the pursuers would have required to adhere to the terms of the feu plan in that it was put forward by one of their directors. However counsel for the defenders accepted that there can be no element of personal bar in the context of real rights derived from the Land Register. It was submitted that much of Mr McKenzie's exercise was simply checking what is there at the moment. Only the scaling exercise considered the line on the title plan. Mr Milner's measurement was closer to the 40 metres description in the feu plan, and should be preferred, if only in that it splits the difference between 37.5 and 40 metres. Alternatively the pursuers have failed to prove their case. Reference was made to Hendry v Clan Line Steamers Ltd 1949 SC 320.

Discussion and Decision

[30] In addition to the evidence summarised above, there was some explanation of the history of the parties' relationship with each other. At one time Mr Robertson and Miss Quay were on good terms. Miss Quay worked for the pursuers, however she was made redundant. It is clear that, for whatever reasons, Miss Quay and Mr Robertson fell out. In the course of the evidence it emerged that they disagree as to whether he is or is not a godfather to her daughter. Happily I am not required to resolve that matter. It may be that the breakdown in relations explains why the clearance works were carried out and the new fence erected without any consultation with the defenders, and with no attempt to reach an agreed position for the fence. The defenders objected to the apparent failure to respect the terms of the feu plan appended to the disposition. That was understandable since most people would assume that it described the extent of the land purchased from Mr Robertson. However, as the defenders now know, their property is defined by the title plan referable to their registered title. That plan does not provide the same detail as the feu plan. The issue boils down to the exact length of a line on the title plan. Neither surveyor can be certain as to his evidence given the margin for error involved. The difference between them is more or less within that margin for error.

[31] The question for me is whether I am satisfied that the pursuers have proven that the new fence is in the correct place. The green line on Mr McKenzie's plan coincides with the position of the new fence. Counsel for the pursuers submits that I should prefer Mr Kenzie's evidence over Mr Milner's. He says that not only is it a more robust assessment, it is also consistent with the line of the pre-existing fence. The title plan was based on OS data, which it can be assumed reflected the physical boundary between the two properties. Counsel for the defenders invites me to answer the above question in the negative, essentially because Mr Milner's evidence is more consistent with the "40 metres or thereby" measurement in the feu plan. Furthermore it is submitted that the pursuers have not proven that the new fence is in the same place as any previous physical boundary.

[32] I agree with Mr McShane that Mr McKenzie's evidence has certain advantages over that of Mr Milner. Mr Milner's critique of Mr McKenzie's report included some erroneous assumptions. Perhaps more importantly, Mr McKenzie considered more title plans and carried out what, on the face of it, would appear to have been a more detailed and robust examination of the critical issue, including a triangulation exercise. While I would not pretend to have understood the full details of that exercise, Mr Milner did, and he provided no clear rebuttal of it. I suspect that to an extent the wind was taken from his sails when he learned that, contrary to his initial understanding, the northern gable at 4 Moss Way had not been altered during the development works.

[33] So far as the "40 metres or thereby" legend on the feu plan is concerned, there was no evidence from anyone involved in the preparation of that plan, so it is very difficult to know what weight should be placed upon it. Some of the other boundaries were defined very precisely, albeit all were subject to the qualification "or thereby". For example, one boundary was described as being 13.43 metres in length. In the evidence it was suggested that the person who prepared the feu plan may not have measured the exact distance of the north-eastern boundary because it was straddled by a garage.

[34] Some of the boundaries on the feu plan, including the 40 metres or thereby boundary, are said to be "undefined". On the other hand the 8 metre boundary, which now marches with the new access road, is said to represent a fence line. That suggests that there was a fence at that location before the recent works. Mr Robertson gave evidence that the pursuers placed the new corner post in the same position as an earlier one, albeit it and the rest of the fence were obscured by trees and bushes. I have been invited to conclude that he was lying. I would only come to that conclusion if there was good reason to do so. All the witnesses, including Mr Robertson, appeared to me to be doing their best to be truthful and honest. So far as Mr Robertson is concerned there is little room for him being mistaken on this issue. However the same cannot be said for the defenders. Before the dispute there was no reason for them to search in the bushes for any signs of a post or fence. There may well have been no obvious physical barrier and nothing which would prevent their dog from roaming freely in the area. The impression I gained from Mr Robertson's evidence was that the fence was in the midst of trees and bushes and was in a fairly dilapidated state. Mr Milner gave similar evidence about finding a straining post on the boundary to the south of the old workshop, which is similarly described as a fence line on the feu plan. He did not search for any further evidence of a fence, suggesting that it was not visible to the casual onlooker. I consider it entirely possible that though the defenders did not notice anything which they would describe as a fence at the disputed location, nonetheless, whilst clearing the area Mr Robertson did see signs of a fence, which then guided the location of the new posts. While there was some uncertainty in the evidence as to whether the fence was erected at the time or afterwards, Mr Robertson did insist that a hole was dug to mark the spot of the key corner post.

[35] Having given the matter careful consideration I accept Mr Robertson's evidence to the effect that the new fence was located in accordance with an earlier physical boundary. Of course that is not in itself determinative, but it does provide some support for the title plan boundary as identified by Mr McKenzie, given that it follows that his green line coincides with not only the new fence but also the position of the old fence. It is likely that the OS survey data reflected that physical feature.

[36] I can summarise my conclusions by saying that I prefer Mr McKenzie's evidence to that of Mr Milner, and I accept Mr Robertson's evidence as summarised above. I therefore find in favour of the pursuers on the key issue and hold that the new fence is in the correct position. It follows that I endorse the green line as shown on Mr McKenzie's plan A attached to his report of 6 April 2009 (production 6/11) as representing the boundary between the defenders' property and the access road now known as Moss Way.

[37] While the defenders have failed in their defence to this action, I can well understand their desire to uphold the boundaries as indicated on the feu plan. It described the land which, quite reasonably, they understood had been purchased from Mr Robertson. The small area of ground in dispute has no special importance or value for them, but nonetheless rights to land often engender strong feelings. In my view it is also unfortunate that the pursuers proceeded with the clearance works and the erection of the new fence without consulting the defenders. Such discussions might have avoided the current dispute and the resultant costs of litigation.

[38] In the course of the hearing on the evidence both counsel acknowledged that the conclusions in the summons do not focus the issue between the parties. It was suggested that, should the pursuers be successful, the case should be put out by order for discussion as to the terms of an appropriate interlocutor. I shall do that, meantime reserving all questions of expenses.