Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 27

XA143/13

Lord Brodie

Lord Bracadale

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD DRUMMOND YOUNG

in an Appeal to the Court of Session

under section 11 of the Tribunals and Inquiries Act 1992

by

ROSE RIVENDALE

Appellant;

against

A decision of the Lands Tribunal for Scotland dated 30 October 2013

Appellant:  Mitchell, QC, Burr;  Drummond Miller LLP

Respondent:  (Lynne Elizabeth Clark) McIlvride, QC;  Anderson Strathern LLP

16 April 2015

[1]        The appellant is the proprietor of South Cottage, Baluachrach, Tarbert, Argyll.  She acquired the property in March 2010 and applied for registration of her title.  It became apparent that there was a dispute as to the precise boundary of her property.  The land in front of her house is registered as the property of the respondent, Lynne Elizabeth Clark, who since May 2007 has been the registered proprietor of a substantial area of ground at Baluachrach.  The respondent now concedes that a strip of land approximately 2 metres wide in front of South Cottage is the property of the appellant.  The appellant, however, claims that she is entitled to a significantly larger area, which includes a portion of a track, now surfaced, that runs in front of South Cottage.  She has made an application to the Lands Tribunal under section 9 of the Land Registration (Scotland) Act 1979 for rectification of the registered titles; originally her application was for rectification of her own title, but by agreement this has been treated as an application for rectification of the respondent’s title, in such a way that the disputed area, including the portion of track, appears in her own title.

[2]        The Lands Tribunal found the appellant entitled to rectification of the respondent’s title to the extent that there should be removed from the latter title the strip of land approximately 2 metres wide conceded by the respondent.  It further found that two further areas should be removed from the respondent’s title: a strip of land covered in grass lying between the conceded area and the edge of the track that currently runs in front of South Cottage; and a small portion of roadway where the track had “migrated” by distances of up to 0.65 metres from its original course.  Thus on the main question the Tribunal found in favour of the respondent, and accepted the appellant’s case only in respect of two additional areas.  The result was that the boundary of the two properties ran along the edge of the present track apart from the small area of roadway where the track had “migrated”.  In respect of that area the Tribunal found that the respondent was a proprietor in possession who would be prejudiced by rectification.  The appellant has appealed against that decision, contending that she is entitled to the larger area of ground extending over the track.

The factual background

[3]        The Lands Tribunal, after hearing evidence from a number of witnesses and carrying out a site inspection, found as follows.  The locality of Baluachrach, which lies on higher ground to the south of the village of Tarbert, has been the subject of piecemeal development.  A hard-cored track leads into the area in a north-easterly direction.  To the left of the track are three cottages, the third of which is South Cottage.  The frontage of South Cottage includes the cottage itself, a shed extension on the site of an old byre, and some further grassland on either side of an old wall.  To the right of the track there is open space, and then a low wooden fence and a high hedge, on the other side of which lies a modern house, Mudheireadh, where the respondent lives.

[4]        By two dispositions both dated 13 February and recorded in the General Register of Sasines on 21 February 1950 the then landowner, George Knight, disponed two cottages, South Cottage, Baluachrach, and West Cottage, Baluachrach, to their sitting tenants.  The disponee of South Cottage was Catherine McQuilkan (erroneously named as Catherine McQuilken).  The description in each disposition referred to the subjects as being delineated and coloured pink on a plan annexed.  Unfortunately those plans were mixed up; the disposition of South Cottage had the plan for West Cottage and vice versa.  In 1960 the mistake about the plans was addressed in a corrective disposition of South Cottage, again executed by George Knight.  The preamble to this deed narrated the error about the plans and that Mrs McQuilkan had reconveyed the subjects to Mr Knight so that he could grant a disposition de novo with the correct plan annexed.  The description in the dispositive clause of the corrective disposition is in the following terms:

“ALL and Whole that area of ground at Baluachrach, near Tarbert:… as occupied and possessed by the said Catherine McQuilkan the former tenant thereof, which subjects hereby disponed are delineated in red and coloured pink on the plan annexed and subscribed by me as relative hereto (a duplicate of which plan shall be recorded along with these presents in the Division of the General Register of Sasines applicable to the County of Argyll) but which plan, though believed to be correct, is not guaranteed…”.

[5]        The plan annexed to the 1960 disposition of South Cottage was substantially the same as that mistakenly annexed to the 1950 disposition of West Cottage.  The subjects, comprising the cottage, and adjoining extension (byre) and surrounding ground were delineated and shaded.  Most of the ground was to the north and north-west of the buildings, but to the south-east of the cottage and byre a strip of ground to the front of the cottage was included.  The width of that strip was in the region of 12 to 15 feet, curving slightly inwards towards the north-east to not more than 10 feet.  A double dotted line depicting a track lay immediately to the south-east, outside the subjects.  That track led from and to other buildings and linked to other tracks to the north.  The appellant’s title and her claim to the disputed area of ground are based on that disposition and plan.

[6]        The respondent’s claim to the disputed area arises as follows.  In 1955 Mr Knight conveyed the remainder of his property in Tarbert to a company known as English Farms Ltd, and in 1958 that company disponed land adjacent to South Cottage to Stanley James Macgregor-Smith, a predecessor in title of the respondent.  The description in the 1958 disposition referred to a plan which showed the boundary of the subjects in the vicinity of South Cottage as adjoining the south-east walls of the cottage and its byre.  The respondent’s registered title is based generally on the disposition in favour of Mr Macgregor-Smith, although the disposition in her favour, dated 16 March 2007, shows South Cottage and its adjacent store as they now exist.  In the vicinity of South Cottage the area of land included in the respondent’s title is relatively narrow in width, and it leads in a north-easterly direction to a wider area of ground also included within the title.  In 2009 the respondent sold ground lying to the north-east of South Cottage to a building company, which built two houses and sold these in 2010 and 2011.  The dispositions in favour of the building company and the two purchasers included rights of pedestrian and vehicular access over the ground in front of South Cottage, but excluded a strip approximately 2 metres wide immediately to the front of the cottage. 

[7]        The Tribunal narrated the history of South Cottage, about which they heard considerable evidence.  It had been occupied by members of the same family between 1950 and 2006/07.  During much of that period there had been no well-defined track in front of the cottage, but merely well compacted grass down to a burn situated approximately 5 or 6 metres from the house.  Although the cottage had more extensive garden ground to the side and rear, the front was the sunny side, which made it a natural area for sitting out.  The area as far as the burn had been used by the owners of South Cottage from time to time for that and other purposes.  It was also at times used for pedestrian access to the ground to the north-east.  Until the 1980s there had been another old cottage a short distance to the north-east, but when the last member of the occupying family died the cottage fell into ruin.  The disputed land was used by the occupiers of that cottage and their visitors.

[8]        The appellant purchased South Cottage with entry in March 2010 with a view to renovating it extensively; it had been vacant since 2006 or 2007.  She thought that she owned the ground at the front, and started making use of it in various ways which quickly attracted opposition from the respondent.  She erected a gate across the track running past the cottage, but this was removed within a day or so by persons acting on behalf of the respondent.  She also strimmed the grass on both sides of the track.  At about the same time the two new houses to the north-east were constructed, and vehicular traffic involved in the work passed along the track after March 2010.  The dispute appears to have arisen against that background.

Lands Tribunal’s interpretation of the titles

Location of track

[9]        The Tribunal noted that a central factual issue in dispute was whether the track as it currently exists is located on the ground on which a track is depicted on the title plans.  It concluded that the plans disclosed that a strip of ground to the front of South Cottage approximately 10 to 15 feet wide was included in the appellant’s title.  The location of the track shown on the plan annexed to the title was imprecise.  The disposition did not guarantee the plan, but the plan had been professionally prepared and the deed stated that it was believed to be correct.  The Tribunal also carried out a site inspection, which indicated a similarity in general shape of the course of the present track and that shown on the plans.  Neither the shape nor the measurements shown on the plans appeared to fit a track located further out from South Cottage.  Further to the east there was a small rocky mound, which made a track unlikely in that direction.  The Tribunal reviewed the oral evidence that it had heard at some length.

[10]      In the light of that evidence the Tribunal held that the current track lies generally on the same ground as the track shown in the plan annexed to the 1960 disposition, but it is wider and follows a straighter course in the vicinity of South Cottage.  It found that the edge of the current track is approximately 0.65 metres closer to the southmost gable of the cottage, approximately 0.27 metres closer to the gable between the cottage and the store, and approximately 0.3 metres closer to the north end of the front wall of the store.  That conclusion was based essentially on the 1960 plan, which was available as evidence of what was understood to be the extent of the tenancy and therefore intended to be conveyed to the appellant’s predecessor in title, Mrs McQuilkan.  On that basis an inaccuracy had been established in the respondent’s 1958 foundation title, which cannot have disponed the land immediately in front of South Cottage, as shown in the plan annexed to the 1958 disposition.

Prescription

[11]      The appellant’s claim was founded on prescriptive possession, based on the terms of either the 1954 or the 1960 title, without reference to the plan.  The argument, based on Auld v Hay, 1880, 7 R 663, was that provided that the terms of the grant were such that they might include the subjects claimed, the requisite possession of the subjects would confer title, even if the grant were equivocal.  The appellant contended that the general description in the dispositions of 1950 and 1960 in favour of Mrs McQuilkan, together with the words “as occupied and possessed by” the tenant, was capable of including the area that had been possessed in front of the cottage.  The disposition contained a general description, “as occupied and possessed by the tenant”, and the plan was not guaranteed.  Consequently the dispositive clause ruled; the plan was not taxative and was thus of little or no weight.  That was sufficient to create a title that was habile for prescription of the disputed area.

[12]      The Tribunal indicated that it had not found the question whether the title was habile to found prescriptive possession altogether easy.  Although there was some force in the appellant’s argument, it concluded that regard should be had to the plan in determining the extent of the subjects conveyed.  The description of the subjects referred to the plan as indicative of not just the precise measurements, which it did not guarantee, but also the extent of the tenanted subjects being conveyed.  Thus the plan could not simply be ignored.  It was the way in which the title indicated the extent of the tenancy and therefore of the grant.  The plan showed an intention not to include the solum of the track.  Furthermore, it seemed understandable that the estate owner would not grant a tenancy, as against a right of access, over such an access route; nor was it likely that on selling to a sitting tenant the owner would leave himself with only access rights.  Thus nothing in the wording of the dispositive clause justified ignoring the clear limitation in the plan on the extent of the subjects conveyed.

[13]      Nevertheless, the Tribunal accepted that the appellant’s title included the area up to the approximate boundary of the track; that was covered by the dispositions, including the plan.  Furthermore on the oral evidence the area between the track and the house appeared to have been understood as part of Mrs McQuilkan’s tenancy, and there was sufficient possession for prescription to operate in respect of that area.

Whether the respondent is a proprietor in possession who would be prejudiced by rectification

[14]      The foregoing finding required the Tribunal to consider whether the respondent was a proprietor in possession who would be prejudiced by rectification; if so, rectification could only be granted in the situations listed in section 9(3) of the 1979 Act.  In the present case the Tribunal did not think that the question could be answered simply by looking at the area of ground covered by the inaccuracy and then deciding who was in possession of that area.  In the particular circumstances two different types of use and enjoyment were involved: use as the garden ground of South Cottage and use as an access track to the land lying to the north-east.  On that basis the issue of possession was substantially a question of finding where one of these ended and the other began.

[15]      The Tribunal concluded that the area of ground up to the edge of the current track was part of the garden ground of the cottage and not part of the track.  The respondent had conceded that flower beds situated immediately in front of the cottage were the appellant’s property, and the Tribunal thought that the area of grass up to the track was in the same position.  It found that the respondent had not been in possession of that area at the time of the application for rectification, nor previously.  Apart from one occasion when a contractor employed by the respondent had removed a short section of wall at the south gable end of South Cottage, the evidence did not disclose any significant use or enjoyment of the area of grass between the cottage and the track by the interested party.  Nor could it be said that that area had been used to obtain access to the land lying to the north.

[16]      There remained a triangular strip where the current track was straighter than the track shown in the plans.  This was a small area, tapering from a width of 0.65 metres down to nil.  The evidence of possession of that area by the respondent was as follows.  In 2009 the respondent had granted an access right over this area to the building company that built two houses to the north-east.  The building company had hard-cored and surfaced the track in that area.  The respondent had conferred access rights on the purchasers of the houses.  In order to facilitate the improvements to the track, the respondent had employed contractors to culvert a burn that lay on the other side of the track from South Cottage.  Thus the land to the north-east had been developed and the track had come into use as an access road to that land in reliance on rights over the triangular area.  The respondent had retained ownership of ground further to the north, and she also reserved a right of access over the track for herself as such owner.  She also made limited direct use of the track, in that she occasionally walked her dog along it.  She had in addition had a gate placed across the track by the appellant removed almost immediately.

[17]      The Tribunal held that those actings were sufficient to render the respondent a proprietor in possession in respect of the triangular strip.  It thought that the fundamental policy consideration was protecting registered proprietors who themselves physically use and enjoy the subjects, although that must be extended to some extent to protect, for example, a company owner.  The issue of possession was a matter of fact and degree in the particular circumstances.  In the present case the respondent did sufficient to establish possession of the track, including the triangular area, and her possession persisted at the material time.  Her culverting of the burn, through contractors, appeared to be sufficiently related to taking control of and possessing the track, even though the burn was not situated within the area in dispute.  In addition the respondent had made some slight personal use of the track, and had allowed its widening and improvement.  She had also had the gate placed by the appellant removed, which served to confirm her possession of the track.

[18]      The Tribunal further held that the respondent was able to demonstrate prejudice in respect of the triangular area.  Prejudice might be clear without the need for specific evidence.  The respondent had relied in particular on prejudice in the form of the appellant’s ability to deny her access to the remainder of her property, which she might wish to develop further.  The Tribunal considered that to be clear prejudice.  While the loss of the triangular area would only narrow the track slightly at the relevant point, that would still constitute prejudice.  Thus in respect of that area the appellant was not entitled to rectification of the respondent’s title.

The appeal

[19]      The appellant has appealed against the decision of the Lands Tribunal on four grounds, although in the event only three of those were insisted in.  Those three grounds are as follows:

1. The Tribunal erred in finding that the appellant’s title was not conceived in terms capable of being construed so as to convey the solum of the track ex adverso of South Cottage, and was not hot habile to found title to that area of the track by positive prescription.
2. In relation to the respondent’s possession of the disputed area, the Tribunal erred in finding (a) that evidence of culverting a burn, which burn was not within the disputed area, could be used as an adminicle of evidence that could go to demonstrate possession of the disputed area; (b) in finding that additional slight personal use by the respondent was sufficient to establish possession in terms of section 9(3) of the Land Registration (Scotland) Act 1979; and (c) in finding that authorization by the respondent of use of the disputed area by others, as in widening and improving the track and removing a gate, constituted possession.
3. The Tribunal erred in its consideration of prejudice to the respondent, first in finding that prejudice might be clear without the need for specific evidence, and secondly in concluding in the abstract and without evidence that the respondent would suffer prejudice.

The appellant’s title

[20]      The first submission for the appellant was that her title, as constituted by the disposition of 1960 in favour of Catherine McQuilkan, was habile to include the solum of the track in front of South Cottage.  On that basis the appellant and her predecessors in title could have acquired right to that part of the track by positive prescription.  The Lands Tribunal had been in error in treating the plan annexed to the disposition as indicating the boundaries of the subjects conveyed.  The plan was not taxative;  the wording of the dispositive clause indicated in terms that it was not guaranteed.  Thus the usual rule, that the dispositive clause is decisive and conclusive, should have ruled: Halliday, Conveyancing Law and Practice, 2^nd ed, paragraph 4-27; Hume, Lectures, IV.134.  On that basis the plan should have been ignored.  Moreover, the plan was according to the terms of the dispositive clause only “believed to be correct”, which meant that it might also be incorrect.  That meant that the track might lie within the subjects conveyed, in which case the deed could be regarded as habile for the purposes of prescription: Reid and Gretton, Conveyancing 2013, 46.

[21]      In our opinion this argument is not well founded.  The critical question arises out of the wording of section 1(1) of the Prescription and Limitation (Scotland) Act 1973, which refers to possession founded on and following “the recording of a deed which is sufficient in respect of its terms to constitute in favour of [the person exercising possession] a title to [an interest] in land of a description habile to include the particular land”.   The critical question is accordingly whether the description of the land conveyed to the appellant’s predecessor in title is “habile” to include the area of track in front of South Cottage.  For this purpose we consider that it is the 1960 disposition that must rule, and not the 1950 disposition.  We reach this conclusion for two reasons.  First, the 1960 disposition, as its terms indicate, followed a reconveyance of the subjects by Catherine McQuilkan to George Knight, the granter.  Thus the effect of the 1950 disposition was undone before the 1960 disposition was granted, and any possession thereafter must have followed of the 1960 disposition.  Secondly, the 1960 disposition was granted, and expressly records, that the reason for the reconveyance was the erroneous attachment of an incorrect plan to the 1950 disposition.  Thus the clear intention was that the 1960 disposition should regulate the disponee’s rights in the future.

[22]      The dispositive clause of the 1960 disposition is in the terms stated at paragraph [4] above.  It contains three elements.  The first of these is a reference to the area of ground “occupied and possessed” by Catherine McQuilkan, the former tenant.  The second is a statement that the subjects disponed “are delineated in red and coloured pink on the plan annexed and subscribed by me as relative hereto”.  The third is a statement that that plan “though believed to be correct, is not guaranteed”.  If the first of these had stood by itself, the title would not be a bounding title and the disponee and her successors could unquestionably have established title to the solum of the track by prescriptive possession.  It is followed, however, by the second element, which indicates that the subjects possessed by the former tenant and disponed by the disposition are delineated in red and coloured pink on an annexed plan.  In our opinion that reference to the plan must have a purpose.  First, the general rule is that so far as possible the full wording of a clause in a disposition should be given effect, and the reference to the plan is an integral part of the description of the subjects in the dispositive clause.  Secondly, the plan in question was professionally prepared, and for that reason it appears to be intended to fulfil a significant role in the disposition.  Thirdly, and most importantly, without the plan the disposition was completely imprecise as to the subjects conveyed, and the obvious purpose of incorporating a plan was to denote the extent of those subjects.  The reference would have no point otherwise.  The dispositive clause must in our opinion be construed in the light of that clear objective.

[23]      The reference to the plan is followed by the statement that, although believed to be correct, it was not guaranteed.  The lack of a guarantee serves the obvious purpose of excluding warrandice in respect of the precise boundaries shown on the plan.  That in our opinion is all that it is intended to achieve.  Moreover, the lack of warrandice can only extend to aspects of the boundaries; the core of the subjects conveyed, the building itself, would in our view clearly be covered by the warrandice clause in the disposition.  It is no doubt true that if a plan is only “believed to be correct” it may be incorrect, as Professors Reid and Gretton indicate: Conveyancing 2013, 46.  Nevertheless this consideration is in our opinion outweighed by the factors discussed in the last paragraph: the reference to the plan must serve a purpose, and its purpose is to denote with reasonable accuracy the extent of subjects conveyed.  Professors Reid and Gretton observe that the standard formula of declaring the plan “demonstrative not taxative” was not used; had it been, it would clearly have been correct to have regard to the boundaries on the plan because even a demonstrative plan is intended as an accurate description of the subjects conveyed, albeit one that can be overridden by the verbal description in the dispositive clause.  Although that wording is not used, we are of opinion that when the present dispositive clause is read objectively its intention must be the same as if such a declaration had been made: “taxative” means, in practice, that the delineation in the plan is guaranteed, and the wording used in the present disposition is designed to exclude a guarantee.  The result is that in the present disposition the plan demonstrates the boundaries of the subjects without guaranteeing them.

[24]      The foregoing considerations are in our opinion supported by the circumstances that surrounded the grant of the disposition in 1960.  George Knight, the disponer, retained an area of land to the north-east, and the configuration of the land was such that the access to the area to the north-east lay along the track in front of South Cottage.  There were, as the Lands Tribunal observed, difficulties in moving the track away from South Cottage, because of the existence of a burn and small rocky mound to the east of the track (see paragraph [9] above).  The disponer might obviously wish to make use of the land to the north-east, whether by development or otherwise.  In these circumstances we agree with the Tribunal that it is unlikely that he would have disponed the track without at least reserving a right of access.  There is, however, no such reservation in either the 1950 or the 1960 disposition.

[25]      For these reasons we are of opinion that the Lands Tribunal was correct in having regard to the plan in determining the boundaries of the subjects conveyed to the appellant’s predecessor in title.  We were referred to a number of cases in the course of submissions, and in our opinion these support the view that we have reached.  The most salient case is Luss Estates Co v BP Oil Grangemouth Refinery Ltd, 1987 SLT 201, where the heritable proprietors of a barony sought declarator that they were the proprietors of a stretch of foreshore ex adverso of lands that had passed to the defenders.  The feu contract in favour of the defenders’ predecessors described the relevant boundary as “by the shore of Loch Long”, until it joined the mouth of a particular burn, and acreage and measurements were given.  The deed then continued: “As the same has been measured, and staked out, and is delineated on a plan or sketch of said lands made out by [a named surveyor] and signed by the parties”.  The relevant principle of construction was expressed as follows (LP Emslie at 205B-C):

“Where, however, the subjects conveyed are not merely described in such simple general terms and where, as in this case, a reference to the shore as a boundary is accompanied by references to the area of the grant, to staking out and measurement, and to a plan, the question whether the foreshore is or may be included in the grant, or is excluded from it, must be answered upon a proper construction of the dispositive clause as a whole”.

The feu contract contained indications that the seaward boundary of the land conveyed was the high water mark (at 205G-I), and these were confirmed by the plan.  Comparison of the seaward boundary shown on the plan (even if the plan were regarded only as a sketch) with the 1865 Ordnance Survey map showed that the shape coincided to a quite remarkable degree with the shape of the shoreline at the high water mark; it bore no resemblance at all to the line of the low water mark that appeared on the map.  Furthermore the plan was not merely a sketch; it properly fell to be regarded as a plan, and indeed it had been used in calculating areas (LP Emslie at 205I-L; Lord Cameron at 207B-C).  While the particular wording of the description in that case was different, it is clear authority that a court or tribunal can properly have regard to a plan in determining whether land is excluded from a title, in a case where the description in the dispositive clause consists both of the terms of the clause and a plan that is expressly referred to in the clause.

[26]      Reference was also made to Currie v Campbell’s Trs, 1888, 16 R 237, a case where there was a degree of disconformity between the description given in the text of a feu contract and a plan or sketch annexed to the deed.  LJC Macdonald indicated (at 240) that if there were an inconsistency the description given in the feu contract must prevail over the sketch; Lord Rutherford Clark and Lord Lee, however, held (at 241-242) that on the matter at issue in the case there was no conflict between the words of the description and the plan.  In the present case we do not consider that there is any conflict between the words of the dispositive clause and the plan: indeed, it is the plan that gives substance to the dispositive clause.  In Reid v Haldane’s Trs, 1891, 18 R744, it was held competent to refer in evidence to a plan that had at one time passed with the titles of one party.  The import of the case, however, is confined to using a plan in evidence; in the present case the plan is expressly referred to in the dispositive clause of the disposition.

[27]      We accordingly conclude that the Lands Tribunal correctly concluded that the appellant’s title was not capable of being construed so as to convey the solum of the track ex adverso of South Cottage, and was accordingly not habile to found the acquisition of title to that area by positive prescription.  We should note in passing that the appellant’s grounds of appeal included an argument that reference in the final part of the dispositive clause to “parts, pendicles, rights and pertinents” could be used in construing that clause in such a way as to include the track.  It was ultimately conceded, however, that the reference to “parts and pertinents” is otiose when there is a general, as opposed to bounding, description.  We are of opinion that that concession is clearly correct, and we do not think that the reference to “parts and pertinents” is of assistance in determining the scope of the dispositive clause. 

[28]      The remaining issues raised by the appeal related to whether the respondent could demonstrate possession of the disputed area for the purposes of section 9(3) of the Land Registration (Scotland) Act 1979 and whether rectification affecting the triangular area of ground referred to in paragraph [16] above would cause prejudice to the respondent.  We now turn to these issues.

Respondent’s possession of disputed area

[29]      The appellant makes a number of specific criticisms of the Lands Tribunal’s approach to the respondent’s claim to possession of the disputed area of ground.  If we had held that the appellant’s title was habile to include the whole of the disputed area of ground, this issue would have applied to the whole of that area.  In the event, in view of our decision on the extent of the appellant’s title, the issue only applies to the triangular area of ground referred to in paragraph [16].  A number of criticisms were made.  In summary, these amounted to a submission that the various acts founded on by the respondent as constituting possession were insufficient.  First, it was said that the culverting of the burn, which lay outside the disputed area on the side away from South Cottage, could not be used as an adminicle of evidence of possession.  Furthermore, the culverting work was carried out by contractors, not by the respondent herself.  Secondly, it was said that personal use by the respondent herself was insufficient to amount to possession of the disputed area; her evidence was that she occasionally strimmed the grass in the disputed area and walked her dog along it.  Thirdly, it was submitted that the respondent’s authorization of use of the disputed area by others, as by widening and improving the track and removing a gate, could not constitute possession by her, as they lacked the necessary corpus for possession.  Fourthly, although this submission was not foreshadowed in the grounds of appeal, it was said that use of the area of roadway as an access track was insufficient because that was equally consistent with a servitude right of access and ownership.  It therefore could not amount to an act of possession as owner.

[30]      In our opinion these submissions are unfounded.  First, the fact that individual acts, such as strimming or walking a dog, may not by themselves be enough for possession is immaterial; the critical question is the total picture, and these individual acts are merely adminicles of the evidence that builds up that total picture.  The same is true of the culverting of the burn.  While the burn was to one side of the disputed area, the Tribunal held that the work was related to the surfacing of the track.  That means in our opinion that it too may be regarded as an adminicle of evidence of possession.  Similarly, we consider that the respondent’s permitting the widening and surfacing of the track itself evidenced possession, as did the respondent’s arranging for the removal of the gate put up by the appellant; the critical point there is that the removal of the gate was not challenged by the appellant.

[31]      Secondly, the fact that a particular act such as the use of a roadway is consistent with both exercise of a servitude right of access and possession as owner is immaterial.  It is not essential that possession be unequivocally referable to ownership and nothing else.  Once again, the total picture is important.  Consequently if an act can reasonably be construed as involving possession qua owner, it may be taken into account with the various other adminicles of evidence to the same effect.  Ultimately all of the individual pieces of evidence must be taken together to discover whether they yield a reasonable inference that the possession was referable to ownership.  That in our opinion is what the Tribunal did in the present case.

[32]      Thirdly, possession for the purposes of section 9(3) may in our opinion be exercised through contractors.  The purpose underlying section 9(3) is to confer protection from rectification on a registered proprietor who is in possession of a particular area of land.  The assumption is that in other cases a financial indemnity will suffice to compensate him for the loss of his rights, but where there is possession of the land financial compensation will not be enough: see Kaur v Singh, 1999 SC 180, at 194A-B.  In this context we do not consider it necessary that the acts of possession should be the personal acts of the individual or other legal person who claims to be a proprietor in possession.  Indeed, in the case of a corporate owner this would not be possible, as a corporation must inevitably act through agents.  The same is true of other types of proprietor; an example is a case where a house is held by testamentary trustees for behoof of the testator’s widow in liferent and children in fee.  In such a case it appears to us that possession by the widow and liferentrix must be treated as possession by the owners, the trustees.  Otherwise the underlying purpose of section 9(3) could not apply to such a case.  Consequently we consider that the acts of servicing the track and removing the gate may be regarded as evidence of possession, even though they were carried out by contractors. 

[33]      The Lands Tribunal concluded that the respondent had demonstrated sufficient possession of the triangular area to render her a proprietor in possession within the meaning of section 9(3).  It did so under reference to the decision in Safeway Stores PLC v Tesco Stores Ltd, 2004 SC 29, at paragraphs [78] and [82].  We are of opinion that the Tribunal was fully justified in reaching this conclusion on the basis of the evidence narrated by it and the facts as found by it.  The totality of the acts of possession by the respondent must in our opinion be regarded as sufficient to satisfy the subsection.  In this connection we think that the surfacing of the track and associated works are of particular importance, as they involved significant and permanent changes to the disputed area of ground.  As we have indicated, the fact that the work was carried out by a contractor is not relevant.  We accordingly reject this ground of appeal.

Prejudice to respondent

[34]      The last ground of appeal was that the Lands Tribunal was in error in its assessment of prejudice to the respondent in two respects: first in finding that clear prejudice might exist without any specific evidence to that effect, and secondly in concluding without evidence that the respondent would suffer prejudice.  The respondent had led no evidence on actual prejudice suffered by her.  Furthermore, she had granted access over the disputed area and her other actings there were so minimal that they could not amount to prejudice.

[35]      In our opinion this argument is misconceived.  Section 9(3) requires prejudice, but it is not stated that the prejudice must be material.  Thus in Tesco Stores Ltd v Keeper of the Registers, 2001 SLT (Lands Tr) 23, at 37H-I, the Lands Tribunal stated that “an effect which produces loss of heritable rights can be described as being to the prejudice of the proprietor of those rights at least when these rights have some identified value”.  We agree with that view, which was referred to by Lord Osborne in Safeway Stores PLC v Tesco Stores Ltd, supra, at paragraph [59].  In respect of the triangular area, if the solum did not belong to the respondent, it would be competent for the appellant to remove that area of track, which would substantially impair its utility as a means of access.  It is also quite possible that loss of that area might lead to a dispute with the owners of the two plots to the north where houses have been built.  In all the circumstances we consider that the evidence accepted by the Tribunal was sufficient for it to draw the inference that prejudice had been demonstrated by the loss of the triangular area.

Conclusion

[36]      For the foregoing reasons, we are of opinion that the arguments for the appellant must be rejected.  We will accordingly refuse the appeal.