Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2011] CSOH 51
A683/09	OPINION OF LORD TYRE in the cause MRS ELIN KRISTINA DALGLEISH or WILLEMSE and ROBIN ALEXANDER WILLEMSE Pursuers; against (FIRST) MICHAEL CRAIG FRENCH and MRS JEAN RACHAEL FRENCH; (SECOND) DOUGLAS STEWART and MRS JANICE ANNE McNAUGHTON STEWART; and (THIRD) MRS SHEILA HENDERSON Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuers: Aird; Anderson Strathern LLP (for McLean & Stewart, Dunblane)

First and Second Defenders: Sheldon; TC Young

18 March 2011

Introduction

[1] The pursuers are the proprietors of a house and garden ground known as Roseville, Kilbryde Crescent, Dunblane. Roseville is the northmost of a terrace of four cottages which were built on the west side of Kilbryde Crescent in about 1893. The other three cottages, reading from north to south, are called Laighill View, Belleville and Leyhillock. They belong to the first, second and third defenders respectively. A private road runs westward from Kilbryde Crescent along the southern boundary of Leyhillock and then turns northward, running immediately behind the three southmost cottages and through their gardens until it terminates at the boundary between Roseville and Laighill View. It is this road which (not for the first time) is the subject of litigation.

[2] In this action, the pursuers seek (a) declarator that in terms of their Land Certificate they own "a right in common with the first, second and third defenders to vehicular et separatim pedestrian access and egress from and to Roseville" by the said road; or (b) alternatively, declarator that in terms of their Land Certificate they have a servitude right of way for vehicular and pedestrian access to and egress from Roseville by the said road. They have further conclusions (c) for declarator, not dependent on the terms of their Land Certificate, that they have a servitude right of way over the said road for pedestrian use and for use by private motor vehicles; and (d) for interdict of the defenders from preventing or deterring use of the road for vehicular and pedestrian access to and egress from Roseville by inter alia planting or erecting barriers over the road or appropriating any part of the road for their own exclusive use. The defenders deny that the pursuers have a right of common property in the access road and plead, under reference to detailed factual averments, that any servitude right of vehicular access which formerly subsisted in favour of the proprietor of Roseville has been extinguished by negative prescription or, in any event, by abandonment. The matter came before me on the procedure roll for debate of the preliminary pleas of both the pursuers and the first and second defenders. The pursuers contended that there was no relevant defence to the granting of one or other of the first two declarators already mentioned. The defenders sought dismissal of the action or, alternatively, of exclusion from probation of parts of the pursuers' case.

The pursuers' title

[3] The pursuers' title to Roseville is registered in the Land Register under title number PTH5997. Their acquisition of the subjects generated a first registration, the date of registration being 4 August 2000. In the property section, the subjects are described as follows:

"Subjects Roseville, Kilbryde Crescent, Dunblane FK15 9BA edged red on the Title Plan, together with a right of common along with the proprietors of the other cottages to the access tinted yellow on the said Plan. Also together with a right to use the sewage drain the intended line of which has been shown by a blue broken line on the said Plan."

[4] As a general rule, in accordance with the "curtain" principle of registration of title, it is neither necessary nor permissible to look behind the Land Register at prior title deeds in order to determine the extent of a proprietor's interest in land. Servitudes are, however, in a particular position. Under section 28(1) of the Land Registration (Scotland) Act 1979 (prior to its amendment by the Title Conditions (Scotland) Act 2003, which amendment was not retrospective), the interest of the proprietor of the dominant tenement in any servitude is an "overriding interest". Provision is made in section 6(4) for the noting of an overriding interest such as a servitude in the title sheet of the burdened property but the existence of a valid and subsisting servitude is not dependent upon its being so noted. So far as the benefited property is concerned, a servitude is an interest in land which is entered in the title sheet in accordance with section 6(1)(e) as a "subsisting real right pertaining to the interest". But again the existence of a valid and subsisting servitude right is not dependent upon its having been entered in the title sheet of the benefited property. A servitude may be created off-register by, for example, the operation of positive prescription. Equally, a servitude which had been created by express grant recorded in the Register of Sasines would not ipso facto be extinguished if, for some reason, it was not entered in the title sheet of the benefited property at the time of first registration in the Land Register.

[5] It is therefore relevant, in the present case, to have regard to the terms of a deed in which a servitude right of access was granted to the proprietor of the subjects now known as Roseville. Those subjects were disponed from a larger area of ground by a Disposition by the Trustees of the late John Guthrie and another in favour of James Moir recorded in the Register of Sasines on 13 November 1893. In this deed the subjects disponed are described by reference to a plan annexed thereto, under declaration

"...that our said disponee and his foresaids shall have right of access, in common with the other proprietors of the cottages in the said block of cottages, for the cartage of coals, manure, and other necessary material to the back part of the premises hereby disponed, by the private road of ten feet in width made by the said John Guthrie and me the said James Guthrie for the use of the occupiers of the said block of cottages, and extending from the public road before mentioned, at a point thereof immediately to the south of the said block of cottages round immediately behind the said cottages, as delineated and coloured yellow on the said plan; which road shall be maintained jointly by the proprietors of the said cottages".

The 1893 Disposition also contained a reservation in favour of the granters and their successors as proprietors of the three southmost cottages of a right to the use of a sewage drain running behind the block of cottages (including Roseville) and then eastward along the northern side of Roseville to the public road. Subsequent dispositions of Roseville included as a pertinent a right of access by the said private road (though latterly without express mention of cartage of coals, manure, and other necessary material), and referred inter alia to the 1893 Disposition for burdens.

[6] It is also relevant to note that in December 1980, in an action in Stirling Sheriff Court at the instance of the then proprietor of Laighill View against the then proprietor of Leyhillock, the Sheriff Principal held, after proof, that a servitude right of way by the access road for pedestrian use and for vehicular use by private motor vehicles had been established (at least as far as Laighill View) by the operation of positive prescription.

Submissions for the pursuers

[7] Counsel for the pursuers took as his starting point the proposition that in the absence of any conclusion for reduction or rectification it was impermissible to look behind the terms of the title sheet at prior titles to ascertain the extent of the pursuers' rights. Reference was made to Short's Trustee v Keeper of the Registers of Scotland 1996 SC (HL) 14, Dougbar Properties Ltd v Keeper of the Registers of Scotland 1999 SC 513 and Marshall v Duffy (Lord Philip, unreported, 8 March 2002). In terms of section 3(1) of the 1979 Act, the right set out in the property section of the title sheet vested in the pursuers on registration, regardless of whether it had previously subsisted. This was so notwithstanding that there might be no reference to the pursuers' right in the defenders' titles. As Gretton and Reid observed (Conveyancing, 3^rd ed, 2004, para 8-07):

"...A Land Register title is always slightly precarious. The fact that title flows from the Register makes it certain that one gets mud in the first place - but it also means that one can lose it, if the Register gets fickle in its affections. 'Easy come' leads inexorably to 'easy go'."

Here the title sheet fell to be construed on its terms without reference to extrinsic evidence. This proposition was supported by reference to case law on interpretation of dispositions recorded in the Register of Sasines: it had been consistently held that the conveyancer's intention was irrelevant to construction of the deed: see Anderson v Dickie 1915 SC (HL) 79; Hunter v Fox 1964 SC (HL) 95. The fact that an overriding interest is not noted on the title sheet of a burdened property does not affect the enforceability of the right by the proprietor of the benefited property. The defenders in the present case were not without a remedy. They might be able to seek rectification under section 9 of the 1979 Act, which failing they could claim to be indemnified by the Keeper in terms of section 12.

[8] The issue was simply, therefore, what right was acquired by the pursuers when their title was registered. In the present case the meaning of the description of the subjects in the title sheet was clear. Either it was properly categorised as a right of common property in the access road or as a servitude right of access by the road. It did not much matter which: both rights are members of the same judicial family and either would entitle the pursuers to use of the road for vehicular access. Although the wording in the title sheet might be somewhat unusual, it was habile to comprehend either right. The word "of" might be a clerical error for "in" but that did not obscure the meaning of the words read as a whole. The right was one of access which all the proprietors shared. The geographical extent of the right was readily apparent from the reference to the title plan. If it was a right of common property then the fact that the subjects in question were a road indicated that the co-proprietors (including the pursuers) had a right to use it for vehicular access. If it was a servitude then in absence of express qualification, a right of access by a road ten feet in width necessarily indicated a right to vehicular access.

[9] In these circumstances, the pursuers were entitled to decree de plano in terms of their first conclusion for declarator or, alternatively, in terms of their second conclusion for declarator. Moreover, the defenders' averments regarding (i) the accuracy or otherwise of the pursuers' title sheet, (ii) the terms of the defenders' own titles, (iii) extinction of any servitude right of vehicular access by prescription and (iv) abandonment of any such servitude right were irrelevant and should not be admitted to probation.

Submissions for the defenders

[10] Counsel appearing at the procedure roll hearing represented the first and second defenders, whose position on record is identical. In order to avoid unnecessary expense, the third defender was not separately represented but had indicated that she would accept the decision of the court with regard to the arguments of the other parties.

[11] Counsel began by noting that the pursuers' title sheet was not the sole measure of title with regard to servitude rights such as a right of access. Section 3(2) of the 1979 Act made clear that registration was without prejudice to any other means of creating or affecting real rights or obligations under any other rule of law. The word "affecting" was wide enough to cover extinction of a servitude by operation of negative prescription. The recording of a deed in the Sasine Register did not interrupt the running of negative prescription (cf the facts of Hogg v Campbell, Lord Clyde, 2 April 1993, unreported) and the same applied to registration in the Land Register. In so far as the pursuers' conclusions based upon the terms of their title sheet were concerned, the description of the right was so obscure as to be meaningless. It was neither a right of common property, common interest nor servitude. Hunter v Fox (above) was relied upon for the proposition that words could not be read into a deed in an attempt to make the meaning clear. If, therefore, as the pursuers contended, it was impermissible to go behind the title sheet, registration had conferred no right at all on the pursuers with regard to the access road. My attention was drawn to North Atlantic Salmon Conservation Organisation v Au Bar Pub Ltd (Edinburgh Sheriff Court, 18 July 2008, unreported), in which the sheriff held that the terms of the Land Certificate in question in that case were not definitive and that it was permissible to have regard to the titles of neighbouring properties to ascertain the extent of the subjects owned. That would not, however, assist the pursuers in the present case as the neighbouring titles would disclose no right of common property or of vehicular access in the pursuers' favour.

[12] Before a valid right could be held to have been created in favour of the pursuers, it would be essential to identify the nature of that right, because different types of right have different legal consequences. A right of common property, for example, would not necessarily carry with it a right of vehicular access: that would require the agreement of the co-owners. Such a right cannot extinguished by negative prescription. The right narrated in the pursuers' title sheet could not in any event be a right of common property, enforceable against the defenders, unless it were demonstrated that there were equivalent rights in their titles. There could be no pro indiviso right in land if the titles of the alleged co-proprietors were in different terms. A further difficulty was caused by the fact that the pertinent in the pursuers' title sheet could possibly be categorised as a right of common interest. Although common interest has now been abolished in relation to tenement buildings, it can exist in other circumstances (see Gordon, Land Law (3^rd ed, 2009, paras 15-38 to 15-43 and the cases cited there).

[13] Even if, contrary to counsel's primary submission, the right was held not to be meaningless and was characterised as a servitude right of access, there was nothing in the title sheet that would confer a right of vehicular access. In accordance with the presumption for freedom that applies to servitudes, it should be given the interpretation least burdensome to the servient tenement. Alternatively, if the words in the Land Certificate were held to be meaningless and the pursuers required to rely upon the existence of a servitude subsisting before the registration of their title, there was nothing in the prior titles of the pursuers' property or of the defenders' properties to support the existence of a right of vehicular access. Finally, it was submitted that the defenders' averments regarding extinction of any servitude right of vehicular access by the operation of prescription or, alternatively, by abandonment were relevant and sufficiently specific to entitle the defenders to proof.

Discussion: principles of interpretation

[14] It would be hard not to conclude that this dispute has arisen as a consequence of an error of transcription made during the process of first registration of the pursuers' title in the Land Register. The phrase "a right of common" is neither ordinary English language nor a legal term of art. This is not the only apparent error in the brief description in the property section. I noted earlier that in the 1893 Disposition of the subjects now known as Roseville there was a reservation in favour of the proprietors of the other three cottages of a right to use the sewage drain running behind and to the north of the northmost cottage. In the property section of the pursuers' title sheet, the right to use the sewage drain behind the cottages has somehow become a pertinent of Roseville, although it is unclear what use could be made by the pursuers of a drain which (if it still exists) presumably runs uphill from their property.

[15] I have considered whether, in these circumstances, it is permissible to use the prior titles to Roseville, including in particular the 1893 Disposition, as aids to the proper interpretation of the description of the subjects in the property section of the pursuers' title sheet. On the face of it, this would be a breach of the "curtain" principle which precludes looking at deeds lying behind the Land Register. The possible use of prior deeds as interpretative aids was considered by the Scottish Law Commission in Discussion Paper No 128 on Land Registration: Registration, Rectification and Indemnity (2005) at paragraphs 2.42 - 2.43. It is suggested there that there are circumstances in which it would be appropriate to have recourse to prior deeds in order to accord with the principle that the meaning of an expression in a deed is to be arrived at on a consideration of its context and its relation to the whole deed. The point is made that the "curtain" principle is not absolute as, for example, an entry in the charges or burdens section of the title sheet may sometimes of itself indicate that another deed has to be consulted because although the deed is mentioned, the necessary details of it are not reproduced in the Register. It appears to me that North Atlantic Salmon Conservation Organisation v Au Bar Pub Ltd, mentioned earlier, may have been analogous in that it was not possible in that case to determine the extent of the pursuers' property from the description in the Land Certificate (including the title plan) alone.

[16] I do not regard the present case as being entirely on all fours with the cases concerning interpretation of deeds recorded in the Register of Sasines. Issues of speculation as to the conveyancer's intention do not arise here because the only intention that could be imputed to the draftsman of the entry in the title sheet would be an intention accurately to reflect an existing pertinent of the subjects. That, however, does not answer the question whether it is permissible to have regard to the prior deeds to determine the meaning of the words used in the title sheet.

[17] Neither counsel submitted that I should have regard to prior titles as an aid to interpretation, and I have concluded that to do so in this case would indeed be contrary to the "curtain" principle which underlies the system of registration of title. In contrast to the circumstances discussed by the Scottish Law Commission, this is not a situation where words which comprise an excerpt from a prior deed require to be construed in the context of the deed as a whole, nor of words which ex facie require recourse to another deed for the full picture. The present case is not one in which the words that appear in the title sheet are the same as those appearing as part of a prior deed. It is therefore, in my view, more akin to Marshall v Duffy, and I accept the submission of counsel for the pursuers, under reference to the opinion of Lord Philip at paragraph 22 of that case, that to go behind the terms of the Land Certificate in the circumstances of the present case would defeat one of the principles underlying the 1979 Act. I therefore approach the matter on the basis that the nature of the pertinent (if any) acquired by the pursuers on registration of their title in the Land Register must be determined by examination of the title sheet without reference to prior titles to Roseville.

[18] Nor, in my opinion, is it relevant to consider the terms of the titles of the other three cottages. In Marshall v Duffy, Lord Philip considered it to be the correct approach to look also at two titles in addition to that of the pursuers in circumstances where the three titles were linked by having been produced by the dividing up of land formerly in the ownership of a single proprietor. There is no such link here. The cottages have been in separate ownership since long before the introduction of registration of title. I do not consider that the terms either of prior deeds or of title sheets of the other cottages, recorded or (as the case may be) containing entries made on various dates over the years, unconnected with the registration of the pursuers' title to Roseville, are of any relevance to the issue of interpretation of the entry made in the title sheet of Roseville when the pursuers acquired the subjects in 2000.

Discussion: nature of the right (if any) acquired by the pursuers

[19] Contrary to the submission of counsel for the pursuers, it does seem to me to be of importance to categorise the right, if any, acquired by the pursuers when they were registered as owners of Roseville. Three possibilities were canvassed: common property; common interest; and servitude of way. Each of these has different juristic consequences with regard to the respective rights and obligations of the pursuers and of other affected proprietors, and in particular has implications for the practical issue which is being litigated in these proceedings: namely, the exercise by the pursuers of a right to use the access road for vehicular traffic. It is necessary, therefore, to deal with each of the possibilities in turn.

[20] Common property. In my opinion the entry in the pursuers' title sheet did not confer upon them a right of common property in the access road. I regard this as clear from the reference to a right "to the access tinted yellow on the [Title] Plan". Use of the word "access" alone is not, either in ordinary English usage or in legal terminology, a description of an area of land. As parties agree, words are not to be read into the description and it is not permissible, for example, to read the word "access" as if it said "access road". Although, therefore, the area of land over which any right conferred upon the pursuers on registration of their title is not in doubt, in the absence of a word apposite to describe an area of ground - such as the word "subjects" which is commonly used in the Land Register - the right cannot, in my opinion, be one of common or pro indiviso ownership.

[21] I reach this view as a matter of interpretation of the entry in the pursuers' title sheet. I do not accept the submission by counsel for the defenders that a right of common property could not exist unless there were equivalent provisions in the titles of the alleged co-proprietors. In my opinion, the effect of section 3(1) of the 1979 Act is that if a person is registered as the owner of a pro indiviso share of an area of land, he acquires a real right to that share of the land regardless of its previous ownership. In their Report No 222 on Land Registration (2010), the Scottish Law Commission put the matter thus at para 13.24:

"...On first registration it is normal practice for such pertinents as are mentioned in the Sasine writs to be listed in the A Section (Property Section) of the title sheet. Sometimes, however, these 'rights' are of doubtful validity. The mention of a servitude, for example, might have been a result of wishful thinking and not of a grant by the servient proprietor or of possession for the twenty years of prescription. Or rights in common might contradict other rights in common held on other titles, or might otherwise have no proper basis for existence. Under the Sasine system such 'rights' were null. On registration in the Land Register they are infused with life, with unpredictable results."

If the pertinent described in the pursuers' title sheet had been one of common ownership (e.g. "Together with a one-quarter pro indiviso share, along with the proprietors of the other three cottages, of the area of land tinted yellow on the Title Plan"), then the pursuers would in my opinion have become owners of such a share, whether or not there was any similar provision in the titles to the other cottages. The resulting conflict might then have had to be resolved by rectification or indemnity, but in the meantime the pursuers would have been pro indiviso owners by virtue of section 3(1).

[22] There is, on the facts of this case, a further difficulty for the pursuers with regard to asserting a right of common ownership of the access road. It does not appear to be a matter of dispute that ownership of at least one of the other cottages has changed since the pursuers' title to Roseville was registered in 2000. The first defenders' title to Laighill View was registered in the Land Register on 11 March 2003. The description of the subjects in the property section of the first defenders' title sheet contains no reservation of a right of common property in the access road in favour of the pursuers. Thus the fickleness of the affections of the Register is demonstrated: if, contrary to my view, the pursuers had acquired a pro indiviso share of the access road in 2000, they would have lost that part of it running behind Laighill View in 2003. For that separate reason, declarator in terms of the pursuers' first conclusion could not be granted.

[23] Common interest. I also reject the proposition that the pertinent described in the pursuers' title is one of common interest in the access road. Common interest is, in essence, a right to exercise control over the use of property owned by another. It has been abolished by statute in relation to tenement buildings but the concept has been applied and continues to be applied in other contexts. The authorities demonstrate that it can sometimes be difficult to distinguish between servitude and common interest. There is no unanimity as to whether (prior to the entry into force of section 118 of the Title Conditions (Scotland) Act 2003) common interest could be expressly created or whether it arose only by implication of law (see e.g. Stair Memorial Encyclopaedia, vol 18, para 358; Cusine & Paisley, Servitudes and Rights of Way (1999), paras 1-09 and 1-82 to 1-87; Gordon, Land Law, para 15-06). This point was not fully argued before me and it is not necessary for me to express a view on it. For present purposes I adopt the following observation of Cusine & Paisley at para 1-09(6):

"Rights of common interest typically exist where more than one dominant proprietor have similar or identical rights in and to one servient tenement or where two proprietors have similar and mutual rights over each others' property. The classic example of the former is the ornamental square situation where the dominant proprietors are the surrounding proprietors and the latter is exemplified in a common boundary wall owned exclusively up to the mid-line where both proprietors on either side have rights in the far side of the wall."

[24] The feature which appears to me to distinguish common interest from servitude in such cases is the element of mutuality or reciprocity that characterises the former but not the latter: a point made by Bell, Principles (4^th and subsequent editions), at section 1086, and emphasised in later case law and academic commentary. In my opinion the element of mutuality or reciprocity is absent in the present case: it is apparent from examination of the pursuers' title alone that it purports to grant them a right affecting property belonging to others without any identical or similar right being granted to the others. I was not referred to any case analogous to the present case in which a right of common interest has been held to subsist.

[25] Servitude. The choice in the present case therefore appears to me to lie between the pursuers having acquired a servitude right of way or having acquired no right at all on the ground that no clear meaning can be given to the words appearing in their title sheet. In Hunter v Fox (above), Lord Reid observed at page 99:

"This is a negative servitude, and it is common ground that words purporting to create such a burden must be construed strictly, there being a presumption for freedom... I can think of no stricter method of construction - and none was suggested in argument - than to ask whether a reasonable man with a competent knowledge of the English language could have any real doubt about the meaning of the provision read in its context in the disposition. If the words are self-contradictory, or so obscure that one has to grope for the meaning, then the provision is ineffective, and it is also ineffective if it is ambiguous or reasonably capable of having more than one meaning. There can be no benevolent construction in the sense of spelling a meaning out of obscure phraseology or preferring one of two or more reasonably possible meanings. But if the meaning is clearly apparent, that is sufficient to satisfy the test of strict construction. I can find neither reason nor authority for holding that defective drafting which does not obscure the meaning of the provision is enough to invalidate it."

Applying that test to the terms of the pursuers' title sheet, I am of the view that use of the word "access", in conjunction with the colouring in the title plan, is sufficient to make clear that the right acquired by the pursuers was a servitude right of way. Whether one regards the use of the word "of" in the phrase "right of common" as an unusual English usage or simply as defective drafting, it does not appear to me to create any real doubt that the pertinent described here is one of a servitude right of access by the route coloured yellow on the title plan. I do not regard the wording as either ambiguous or so obscure that one has to grope for the meaning. I therefore hold that on registration of their ownership of Roseville, the pursuers acquired a servitude right of access, in common with the proprietors of the other cottages, by the route coloured yellow on their title plan.

[26] That finding, however, leaves unanswered the critical question which has been brought before the court: namely, whether there presently subsists in the pursuers' favour a servitude right of vehicular access by the access road. It amounts to no more than holding that if no servitude right of access existed prior to registration of the pursuers' title, such a right was then created. The terms of the entry in the pursuers' title sheet afford no assistance as to whether "access" includes vehicular access. There remain a number of issues that require to be determined before the critical question can be addressed. The pursuers aver that a servitude right of access for vehicular traffic had existed for many years prior to their acquisition of the subjects, and refer inter alia to the 1980 decision of the Sheriff Principal in the action between former proprietors of Laighill View and Leyhillock (mentioned above) for support. They aver that they themselves used the road for vehicular access openly, peaceably and without interruption until the first defenders acquired Laighill View in 2003. For their part, the first and second defenders aver that any right of vehicular access granted by the 1893 Disposition has been extinguished by operation of negative prescription; that no servitude right of vehicular access extending as far as Roseville has been created by operation of positive prescription; and that, in any event, in the factual circumstances averred (including the growing of a rose bush or hedge across the access road on the boundary between Roseville and Laighill View) any servitude right of vehicular access to Roseville which may formerly have subsisted has been extinguished by abandonment. It further appears to me that on the defenders' averments the possibility cannot be excluded that a servitude created by entry of the pertinent in the pursuers' title sheet in 2000 has itself been extinguished by abandonment (though not, of course, by operation of negative prescription). These are all matters for proof. They are relevant not only to whether or not a servitude right of vehicular access to Roseville subsisted immediately prior to registration of the pursuers' title in the Land Register, but also to whether (notwithstanding the presumption for freedom) the right of access included in the description of the subjects in the title sheet should be construed as a right of vehicular access and, if so, whether such a right continued to subsist at the time when the present action was raised.

Disposal

[27] In the light of the views that I have expressed, I shall repel the pursuers' first plea in law and sustain the third plea in law for the first defenders and the third plea in law for the second defenders. Quoad ultra I shall allow a proof before answer with all other pleas left standing. I shall reserve all questions of expenses.