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Cite as: [2020] ScotCS CSOH_34, [2020] CSOH 34, 2020 GWD 15-219

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OUTER HOUSE, COURT OF SESSION

[2020] CSOH 34

CA44/19

OPINION OF LADY WOLFFE

In the cause

LEAFREALM LAND LIMITED

against

THE CITY OF EDINBURGH COUNCIL

Pursuer

First Defender

and

THE RAEBURN PLACE FOUNDATION and RAEBURN PLACE DEVELOPMENT

LIMITED

Second and Third Defenders

Pursuer: Lake QC, Anderson; Gilson Gray LLP

First Defenders: Barne QC; Morton Fraser LLP

Second and Third Defenders: Mure QC; CMS Cameron McKenna, Nabarro and Olswang

18 March 2020

Introduction

Contested ownership of a strip of land

[1] A large area of unbuilt, green space lies to the north of Comely Bank Road in

Stockbridge in Edinburgh. This has long been used as playing fields for a number of clubs,

including the Edinburgh Academical Club (“the EA Club”). In 1979 the EA Club acquired

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ownership of land (“the EA Land”) by disposition (“the 1979 Disposition”) from the Grange

Trustees. The southern-most part of the EA Land is now being developed to build a stand

with seating for sports matches and to create a number of retail spaces (“the development”).

[2] The central question in this commercial action is whether the development is being

built on land owned or controlled by one or other of the defenders (the first defender qua

owner and the other defenders by virtue of contractual rights of access), or in respect of

which there is a public right of way - and in either of those circumstances the pursuer’s

action fails, or whether the development is taking place or impinging on a strip of land (“the

Disputed Strip”) - assuming it exists - running parallel to Comely Bank Road and owned by

the pursuer. On the hypotheses that the pursuer establishes that the Disputed Strip exists,

that the pursuer has acquired it and that no rights of way subsist in relation to it, there are

subsidiary questions as to whether the disposition in its favour, which has not yet been

recorded by the Keeper in the Land Register, is vitiated by a number of technical difficulties,

the effect of which would be to disentitle the pursuer from the first declarator it seeks as

owner of the Disputed Strip (“technical deficiency arguments”). The other conclusions were

for declarator that no public right of passage subsisted in the solum of the 1912 Wall, that the

solum of the 1912 Wall had not vested in the Council by virtue of listing Comely Bank Road

as a road, and for interdict against the defenders impinging on the Disputed Strip.

The parties

[3] The first defender (hereinafter “the Council”) is the roads authority. The second and

third defenders are (to simplify) the developers of the development. The second defender is

promoting the development to provide a sustainable income stream in order “to fund the

on-going provision of sport, recreation and associated sports programmes at the site and to

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maintain the new sporting facilities to be provided”. The third defender is a wholly-owned

subsidiary of the second defender, and was established to carry out the development. The

second and third defenders instructed the same legal representation. (For ease of reference,

I shall refer to them collectively as “the developers” and to the Council and developers

collectively as “the defenders”.) The developers were the principal contradictors in this

action, in that they (unlike the Council) instructed their own expert, and they

cross-examined the pursuer’s witnesses and led their own proof before the Council did. On

certain chapters, the Council had no position (eg on the question of jurisdiction, any title and

interest of the developers to oppose the orders the pursuer seeks) or it otherwise adopted

the position of the developers.

Comely Bank Road, the old estate wall and the 1912 Wall

[4] Before setting out the legal issues (of which there are many) and the evidence on the

contested matters, it is helpful to describe the land to which the Disputed Strip relates.

[5] Comely Bank Road, a road in Stockbridge running on an east-west axis, lies

immediately to the south of the EA Land. The 1895 Ordinance Survey (“OS”) Plan for this

part of Edinburgh (“the 1895 OS Plan”) depicts a wall (“the old estate wall”) dividing the

playing fields to the north from Comely Bank Road to the south. The old estate wall runs in

a reasonably straight line along the whole length of the EA Land, apart from two openings

for gates. One of these was a larger opening at the west-most end and the other opening

was close to the eastern end of the old estate wall (hereinafter “the old estate wall

openings”). The approximate width of the old estate wall was 1 foot 8 inches. The

approximate length of the old estate wall along the southern boundary of the playing fields

was about 115 metres (per the GL Survey of 2000).

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The parties’ focus on a dealing in 1912

[6] The central question, as I have described it, arises from certain dealings with the

EA Land in 1912. In summary, in pursuance of a road-widening scheme in 1911, the

statutory predecessors of the Council (to whom I shall refer as “the Corporation”)

approached the then owners of the EA Land (being the trust which had acquired inter alia

the EA Land in 1882, hereinafter “the Grange Trustees”) to request the grant (to use a

neutral word) to them of a 6-foot strip of land immediately to the north of the then-existing

roadway. This would necessitate the removal of the old estate wall which divided the

playing fields from the roadway. In exchange, the Corporation offered to build a new wall

(“the 1912 Wall”) to the north of the old estate wall and to maintain it in all time coming. In

due course, this arrangement was recorded in a Minute of Agreement in 1912 (“the

1912 Minute of Agreement”). (The subjects of the 1912 Minute of Agreement are not the

Disputed Strip; the pursuer’s case necessarily assumes these are different.) I shall refer to

the land which was the subject of the 1912 Minute of Agreement as “the 1912 Strip”.

Immediately to the east of the EA Land lies the Raeburn Hotel (formerly known as Somerset

House). This is set back some distance from Comely Bank Road. In 1913, the Corporation

entered into a similar arrangement with the owner of Somerset House (now known as the

Raeburn Hotel) in the form of missives (“the 1913 Missives”). The new wall built in 1913,

which divided the front garden ground of the Raeburn Hotel from the road, continued the

line of the 1912 Wall. On photographic evidence, the south face of the 1912 Wall bounding

the playing fields to the north was offset by no more than 1 or 2 inches to the north of the

line of the south face of the new wall built in 1913 in front of the Raeburn Hotel pursuant to

the 1913 Missives. (The wall in front of the Raeburn Hotel still stands.)

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[7] The two most contentious issues at the proof were:

1) whether the 1912 Wall was built on the 1912 Strip (as the defenders contend) or

to the north of the 1912 Strip (as the pursuer contends), and

2) whether the 1912 Minute of Agreement was habile to convey the 1912 Strip in

favour of the Corporation.

The assumption underlying the first question appeared to be that if the 1912 Wall had been

built to the north of the 1912 Strip, the ownership of the solum could not have passed to the

Council or any of its statutory predecessors. (I consider further at paras [15] to [17] the

centrality of this assumption to the pursuer’s case.)

The 1895 OS Map and other maps and surveys referred to by the experts

[8] There was extensive reference to several plans in the evidence. It is therefore

convenient here to summarise them (without prejudice to challenges to the accuracy or

reliability of the same):

1) The 1895 Ordinance Survey Map: This was produced to a scale of 1:500, the most

precise scale ever used for OS maps. This enabled features as small as 6 inches to

be depicted. The line of the old estate wall is shown as a virtually straight line

parallel to Comely Bank Road, subject to a slight deviation just to the west of the

approximate mid-point of the wall. (This is just above the letter “R” in the word

“Road” in the depiction of Comely Bank Road.) On Mr McCreadie’s estimation,

this is about 1 foot or so off the line of the old estate wall. (In his second

supplementary report (“MR3”) Mr McCreadie dealt further with the precise

deviation of the old estate wall from a straight line.) The length of the old estate

wall was more than 100 yards long.

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2) The 1908 and 1914 Ordinance Survey Maps: These were produced to a scale

of 1:2500. While the 1914 OS Map showed the 1912 Wall, in Mr McCreadie’s

view, a scale of 1:2500 was insufficiently precise for the finer measurements he

required.

3) The Topographical Survey prepared by GL Survey in 2000 (“the GL Survey

2000”): This was the last survey of the actual line of the 1912 Wall mapped or

plotted on the ground to a known scale, in contrast to the 2012 Condition Survey

(which simply surveyed the physical condition and cross sections of the old

estate wall). The data from the GL Survey 2000 was included in the overlay

referred to by the developers’ expert, Brian Laird (see paras [10] to [11] of

Appendix A to this Opinion).

The pursuer’s title

[9] In explaining the pursuer’s title it is necessary to record the genesis of its granter’s

title and to note the title of the adjoining land by which it is said to be bound on the north.

The Grange Trustees and the EA Land

[10] The Grange Trustees were the granters of the 2018 Disposition in favour of the

pursuer. In brief, in 1882 a number of sporting clubs having separate leases from the same

landowner formed a trust (whose trustees I have referred to as “the Grange Trustees”) with

a view to the ultimate purchase of the land they used as playing fields once the associated

borrowing was repaid. The Grange Trustees held the playing fields under a bare trust and

were obliged to grant title to each club, once its respective borrowing had been repaid. The

1912 Minute of Agreement related to the south-most part of the EA Land.

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The 1979 Disposition in favour of the EA Club

[11] In 1979, the EA Club called on the Grange Trustees to grant a disposition in their

favour of the EA Land and which was to the north of the 1912 Wall (“the 1979 Disposition”).

It suffices for present purposes to note that the 1979 Disposition defined the south border of

the land conveyed as “on or towards the south by the north face of the boundary wall

separating the subjects hereby disponed from Comely Bank Road, Edinburgh” (emphasis

added). The effect of this description as a bounding description is to exclude the boundary

wall (being the 1912 Wall) and its solum from the 1979 Disposition.

[12] This opens up the prospect that the solum of the 1912 Wall was retained in the

ownership of the Grange Trustees if no other party (ie the Council) had acquired ownership

of it (ie by virtue of a statutory listing) or permissibly exercised control over it (eg if

dedicated to road purposes). The pursuer seeks to exploit this prospect. It is in that context

that the two questions noted in para [7] arise. Even if question (2) is determined in favour of

the Council, that was not fatal to the pursuer’s case if it can show that the 1912 Wall was

built outwith (ie to the north) of the 1912 Strip, subject, of course to (a) the parties’

arguments about statutory vesting or listing subsequently constituting the Council as

owning or controlling the 1912 Wall and its solum, (b) there being no public rights of way,

and (c) the 2018 Disposition not being vitiated by the technical deficiency arguments.

The 2018 Disposition

[13] The Grange Trustees granted the 2018 Disposition in favour of the pursuer. The land

conveyed was described as follows:

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“ALL and WHOLE that strip of ground… , shown delineated in red on the plan

annexed and signed as relative hereto and situated generally along the north side of

Raeburn Place/Comely Bank Road, Edinburgh, and bounded on the north by subjects

disponed by Disposition (hereinafter called the ‘1979 Disposition’) by [the Grange

Trustees]…, along which boundary it extends on the line of the north face of a wall

now or formerly situated on the subjects hereby disponed (being the wall situated on

the subjects hereby disponed at the time of the granting of the 1979 Disposition); on

the east partly by ground pertaining to the Raeburn Hotel, Raeburn Place/Comely

Bank Road, and partly by ground within the pavement of Raeburn Place/Comely

Bank Road, Edinburgh (including that part of the pavement which comprises ground

formerly pertaining to the said Hotel); on the south by ground now situated within

the pavement of Raeburn Place/Comely Bank Road, Edinburgh; and on the west by

North Park Terrace, Edinburgh….” (Emphasis added.)

The effect of the first passage underlined is to seek to include the 1912 Wall (up to its north

face) in the 2018 Disposition (on the hypotheses that the Disputed Strip exists and that the

Council did not have rights of ownership or control in respect of it). It should be noted that

there is an indeterminate southern boundary of the subjects of the 2018 Disposition.

[14] The qualified terms of the warrandice clause should be noted. In particular, the

granters of the 2018 Disposition granted warrandice from their “own facts and deeds only”

and bound the trust estate in absolute warrandice,

“but always excepting therefrom the rights constituted in favour of third parties

under (a) [the 1912 Minute of Agreement] and (b) public rights of passage or way

constituted by whatever means and including by means of the Roads Scotland

Act 1984”.

The pursuer’s contention that there is a strip of land capable of being conveyed to the

pursuer

[15] The pursuer’s case is premised on the overarching proposition that there existed a

strip of land (ie the Disputed Strip) between the northern edge of the 1912 Strip and the

north face of the 1912 Wall, not conveyed to or controlled by the Council or the Corporation,

but retained in the ownership of the Grange Trustees and hence capable of being conveyed

by them to it (ie the subjects of the 2018 Disposition). This prospect would potentially arise

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if the 1912 Wall was actually built to the north of, and not within, the 1912 Strip, with the

consequence that the solum of the 1912 Wall remained in the ownership of the Grange

Trustees after 1912. On this hypothesis, the Grange Trustees had title to grant the 2018

Disposition conveying the extant Disputed Strip to the pursuer.

[16] This approach is best illustrated by the draft diagram produced by Mr Lowe (albeit

emblazoned with the coat of arms of “A Company of Grange Members”) and included as

an appendix to the report of the pursuer’s expert, Mr Carrie (“the Carrie Report”). This

diagram showed the north side of Comely Bank Road as a straight line, the old estate wall as

a bowed line (the centre point of which was closer to the road, or further south, than its

ends) and the 1912 Wall built in a straight line parallel to the road. In Mr Lowe’s notes to his

diagram it is asserted that the 1912 Wall was built to the north of the 1912 Strip. As a result,

there was a thin crescent-shaped white gap or strip (being the presumed Disputed Strip)

between the yellow strip (representing the 1912 Wall) and the south face of the 1912 Wall. I

should observe that this diagram has no foundation in fact. There is nothing to enable it to

be related to any known physical point on the ground. It is not drawn to scale. The widest

point of the presumed white strip is stated in the diagram as 2 feet, being a figure Mr Lowe

supplied but for which he said he had assistance from Mr McCreadie. However, to the

extent it was touched on in the evidence of Mr McCreadie, he did not support this figure.

When asked, Mr McCreadie’s evidence was that the maximum difference between the south

face of the 1912 Wall and a distance 6 feet to the north of the south face of the old estate wall

(ie the putative northern edge of the 1912 Strip if it were exactly parallel to the old estate

wall) was about 1 foot but this was not along the whole length of the line. (This was not

explored further with him in his evidence, but parenthetically I note that, if the measure is

taken from the north face of the old estate wall, the gap will obviously be reduced.) The

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absence of any scale measurement on the diagram is consistent with the pursuer’s position

that it sufficed to show that the 1912 Wall was built to the north of the 1912 Strip. This is the

fundamental premise of the pursuer’s case.

[17] Given the number and complexity of the legal and factual issues, it is helpful to

identify some of the individual propositions relevant to this part of the pursuer’s case.

These include the following:

1) That the 1912 Wall was not built on the 1912 Strip; rather it was built on land to

the north of that strip and which remained in the ownership of the then-owners

(the Grange Trustees) of the EA Land;

2) That when the current owner of the EA Land acquired title in 1979, the 1912 Wall

and the solum thereof were not included in the title in its favour (that is, the

Disputed Strip);

3) That neither the Council nor its predecessors ever acquired a right of ownership

in respect of the 1912 Strip under the 1912 Minute of Agreement (it being

ineffective as a conveyance), nor did it acquire ownership or control of the wall

or solum thereof by virtue of any subsequent statutory vesting or listing; and

4) That the 2018 Disposition in favour of the pursuer conveyed the Disputed Strip to

it. (I record below the additional, technical challenges made to the 2018

Disposition.)

The reason why these questions arise and why evidence is necessary to determine them, is

that the 1912 Wall collapsed in 2014 and was subsequently demolished. (As noted above,

the wall in front of the adjacent property, the Raeburn Hotel, and which was built in line

with the 1912 Wall a year later, still subsists.) The destruction of the 1912 Wall several years

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before these proceedings were initiated gives rise to an evidential conundrum, referred to

below (at paras [27] to [29]).

The defenders’ position

[18] The defenders’ overarching position was as follows:

1) That the 1912 Wall was actually built wholly within the Strip;

2) That title was acquired either

(a) by the Corporation by virtue of the 1912 Minute of Agreement (because it was

a competent conveyance of ownership, notwithstanding its tripartite

character or the absence in it of any form of the word “dispone”), or

(b) by the Council by virtue of the subsequent exercise of statutory power, being

(i) vesting or

(ii) listing;

3) Which failing, a public right of way subsists in respect of the solum of the

1912 Wall and that sufficed to enable the developers lawfully to proceed with the

development and to frustrate the pursuer’s action.

Accordingly, while proof that the solum of the 1912 Wall was situated within the 6-foot strip

was not itself determinative of the merits, establishing that factor underpinned the

defenders’ arguments based on the 1912 Minute of Agreement (see 1 above).

[19] Even assuming the pursuer succeeded in proving that the likely location of the

1912 Wall was outwith the 1912 Strip, the pursuer also required to show that the 2018

Disposition in its favour was a valid conveyance, notwithstanding that the Keeper of the

Land Register has not yet registered the pursuer’s title in the Land Register.

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Outline of factual and legal issues

[20] The central question, as I have described it, has given rise to a number of factual and

legal issues, summarised in the paras [21] to [26].

Ownership and the proper construction of the 1912 Minute of Agreement

[21] The principal factual dispute is the physical location of the 1912 Wall and of its solum

relative to the 6-foot strip referred to in the 1912 Minute of Agreement. The related

questions are:

1. Whether or not the pursuer owns the 6-foot strip and, if separate, the solum of the

1912 Wall;

2. Whether, on a proper construction of the 1912 Minute of Agreement, it conveyed

any heritable title to

(a) The 6-foot strip, and/or

(b) the solum of the 1912 Wall to be erected by the Corporation, or whether title

thereto was retained by the Grange Trust or transferred to the Corporation.

(While there was a separate question as to the capacity of the Grange Trust

in 1912 to convey the 6-foot strip or the solum of the 1912 Wall, it is accepted that

it is now too late to contest that matter.)

3. Whether or not, in terms of the 1912 Minute of Agreement, the Trustees of the

Grange Trust ceded title to the 6-foot strip to the Corporation.

4. Whether, in any event, the ownership of the 6-foot strip vested in the

Corporation in terms of section 191 of the Corporation Order Confirmation

Act 1967 (“the 1967 Act”).

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Rights of passage/listing

[22] At issue in this proof was also whether any public right of way subsisted in respect

of the Disputed Strip (as the defenders contend). The relevance of this, as I understood it,

was that even if the pursuer established that it owned the disputed strip, the development

could proceed unimpeded if rights of way subsisted or if the Disputed Strip has been

dedicated to road purposes. The relevant questions may be formulated thus:

5. Whether there is a public right of passage over (a) the 6-foot strip and (b) the

solum of the 1912 Wall.

6. Whether or not the entirety of the 6-foot strip and the solum of the 1912 Wall

forms part of Comely Bank Road and is vested in the Council as roads authority;

or, if the solum of the former wall does not form part of the 6-foot strip, whether

or not the solum of the former wall nonetheless forms part of Comely Bank Road

and vests in the Council as roads authority.

7. This was broken down into more particular questions:

(a) Whether or not the 1912 Wall formed part of the public road (as the defenders

argue); or whether or not the presence of the 1912 Wall necessarily precluded

a public right of passage existing along that section of the strip (as the

pursuer argues);

(b) Whether or not the Council was entitled to include the 1912 Wall within the

relevant listing for Comely Bank Road in terms of section 1 of the Roads

(Scotland) Act 1984 (“the 1984 Act”);

that wall has been demolished; and

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(d) Whether the effect of any statutory vesting was able to convey ownership to

the Corporation.

Prescription

[23] Some of these issues in turn give rise to issues of prescription, namely:

8. Is the Council’s title fortified by positive prescription and exempt from

challenge?

9. Is the Council’s asserted title fortified by positive prescription and exempt from

challenge?

Jurisdiction

[24] On the pursuer’s hypotheses (that it owns the Disputed Strip and there are no

countervailing rights of way), the Disputed Strip has a very substantial value (£800,000 was

mooted) as a ransom strip. This was well within the Court’s privative jurisdiction. If the

defenders’ hypotheses are correct (that there is no Disputed Strip susceptible to be conveyed

to the pursuer or, in any event, a public right of way subsists such as to enable the defenders

to proceed with the development and thereafter for members of the public to access it), then

the value of the Disputed Strip and the sum at issue in the pursuer’s action is nil or of only

nominal value. These competing contentions give rise to the following jurisdictional issue:

10. Whether or not the pursuer seeks orders the aggregate value of which

exceeds £100,000 and whether the commercial court has, or should exercise,

jurisdiction in accordance with sections 39 and 93 of the Courts Reform

(Scotland) Act 2014 (“the 2014 Act”).

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Title and interest of the pursuer

[25] The defenders take discrete technical points, in part arising from the fact that

the 2018 Disposition has not yet been accepted for registration in the Land Register. The

following questions arise:

11. Whether or not, in the absence of an extract of the title sheet for the solum of the

1912 Wall and, more generally, the 6-foot strip given up in terms of the

1912 Minute of Agreement, the pursuer is entitled to the orders sought.

12. Whether or not the 2018 Disposition on which the pursuer relies for its title to sue and

the plan appended to it is sufficient to give to the pursuer a personal title to pursue the

action, irrespective of whether or not the 2018 Disposition and plan are, or come to be,

registered in the Land Register.1

13. Whether or not the plan appended to the 2018 Disposition, on which the pursuer

relies for its title to sue, is sufficient for the Keeper to accept in terms of

section 23(1)(b) & (c) of the Land Registration (Scotland) Act 2012 (“the

1912 Act”).

14. Whether or not the 2018 Disposition includes the solum of the 1912 Wall.

Title and interest of the defenders and interdict

[26] Separately, the pursuer challenges the title and interest of the developers to resist the

order it seeks:

15. The relevancy of the averments for the developers and whether they have title

separatim interest to defend the action.

1 The Council does not consider that this issue arises, since the orders sought relate to the real right of ownership

and not to personal rights.

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16. Whether the developers, whose interest as tenants ends at the north face of the 1912 Wall

have any interest to oppose to the orders sought by the Pursuer, or, as juristic and not

individual persons, to seek to assert access rights exercisable by natural persons under the

Land Reforms (Scotland) Act 2003 (“the 2003 Act”).2

The evidential conundrum and the approaches of the pursuer’s and the developers’

respective experts

[27] The focus of the proof was on the evidential conundrum of how to prove the precise

location of a no-longer-extant wall (ie the 1912 Wall). The pursuer’s approach, which was

map-based, started with the location of the earlier wall (ie the old estate wall) as depicted on

the 1895 OS Map. The pursuer’s expert, Mr McCreadie, applied a variety of techniques

(creating a laser-generated topographical survey, re-scaling a digital version of the 1895 OS

Map and, using computer aided design (“CAD”) and geo-referencing, combining these data

sets to form a topographical survey data set (“TSD”)) in order to identify the precise location

of the old estate wall. Two assumptions were then made: (i) that the northern line of the

1912 Strip exactly replicated the irregular contours of the old estate wall (which was not

straight but bowed slightly to the south at its middle), the justification for which was that

the width of the 1912 Strip was 6 feet; and (ii) that the 6-foot strip included the solum of the

old estate wall, such that the southern boundary of the 6-foot strip was the south face of the

old estate wall. On this approach, Mr McCreadie’s conclusion (without his alignment

adjustment, see para [2(4)] of Appendix A to this Opinion) was that the south face of the

1912 Wall was a distance of between 6 feet 6 inches and 8 inches from the south face of the

2 The developers do not consider that, on the pleadings, the issues set out in questions 15 and 16 arise in this case.

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old estate wall and, therefore, the 1912 Wall was built outwith the boundaries of (ie it was

actually built to the north of) the 1912 Strip.

[28] By contrast, the developers’ positon was to start with the figure of 49 feet as the

width of Comely Bank Road before it was widened (that figure was taken from the

contemporaneous documentation; see para [31(2)], below), and which figure was assumed

to be the distance between the north face of the garden walls on the south side of Comely

Bank Avenue (“the base point”) and the inner aspect or southern face of the old estate wall.

The developers’ expert, Mr Brian Laird, undertook a desk-top topographical study, based on

a number of earlier surveys (although the only one relevant to this proof was the GL Survey

2000). This enabled Mr Laird to depict the 1912 Wall on a modern plan (”the Overlay”).

Next, he measured a distance of 6 feet to the south of each of the north and south faces of the

1912 Wall, and depicted these on the Overlay as dashed lines parallel to the 1912 Wall.

Having done so, he sought to depict the notional line of the old estate wall (drawn a distance

49 feet to the north of the base point) to show that this fell within the dashed parallel lines.

(It should be noted that Mr Laird assumed, incorrectly, that the widths of the old estate wall

and the 1912 Wall were the same, though this does not affect the methodology just

described.) The result was to demonstrate that the 49-foot line fell broadly (his word was

“tolerances”) within the dashed parallel lines. From this, it was inferred that the 1912 Wall

was built on the 1912 Strip, that is, on a line 55 feet north of the base point (the figure of 55 is

the sum of 49 feet and 6 feet). The critical assumptions to this approach were (i) that the old

estate wall was exactly 49 feet to the north of the base point, and (ii) that both walls (the old

estate wall and the 1912 Wall) fell within the 6-foot strip (ie the 6-foot strip commenced from

the south face of the old estate wall). This last assumption operated at least in relation to the

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east end of the old estate wall (see the plan appended to his witness statement; at the west

end the 55-foot offset line coincides with the north face of the old estate wall).

Critical assumption underpinning the experts’ approaches

[29] It should be observed that the assumption common to both experts was that the

relevant starting point for their respective analyses was the south face of the old estate wall,

and which (as just noted) they both assumed was included within the 6-foot Strip.

However, as will be seen, I find that this assumption is fundamentally inconsistent with the

1912 Plan. As a consequence, the expert evidence in this case provided little assistance to the

central factual issue that fell to be determined. Accordingly, I deal shortly with the expert

evidence in the body of the Opinion, though out of deference to parties’ efforts in eliciting

this, I set this out in more detail in Appendix A to this Opinion.

[30] Other issues at proof in relation to the 1912 Minute of Agreement included

(i) whether the plan appended thereto was reliable (ie did its scale match the 6-foot

figure marked thereon),

(ii) to which faces of the old estate wall and the proposed 1912 Wall did the arrows

indicating the northern and southern edges of the 6-foot 1912 Strip relate, and

(iii) whether the 1912 Wall as built was in accordance with the 1912 Minute of

Agreement.

It is appropriate to start with the 1912 Minute of Agreement (including its plan) and the

contemporaneous documentation.

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The 1912 Minute of Agreement and contemporaneous documentation

Entries from documentary materials preceding the 1912 Minute of Amendment

[31] Reference was made to certain documentary materials preceding the 1912 Minute of

Agreement. Extracts from late 1911 and early 1912 were produced from the Minute books of

the Corporation, from the EA Club’s Minute Books and from the Minutes of the Grange

Trustees. In substance these extracts recorded the following:

1) The Corporation’s desire to widen by 6 feet the width of Comely Bank Road (see

the burgh engineer’s report of 18 October 1911 to the Corporation’s Streets and

Building Committee ([JB 110; pdf 797] and also recorded in the Minute of the

Grange Trustees of 30 November 1911 [JB135, pdf870]) and which proposed that

there be “a voluntary surrender” by the Grange Trustees (who were asked in the

burgh engineer’s letter “to surrender the strip required” [JB135; pdf870)) in

exchange for the Council bearing the expense of the new wall;

2) The width of the road was recorded as being 49-feet (per burgh engineer’s letter

of 28 September 1911 ([JB110; pdf798]), a measurement relied on by the

developers’ expert;

3) The resolution of the EA Club “after full consideration” at its meeting on

23 November 1911 (recorded in gremio of the Grange Trustees’ Minute of

30 November 1911) to recommend that it “give six feet off the South side of the

field”, provided that the Corporation erected a wall in accordance with its plan;

4) The EA Club’s agreement to the proposed new wall, if the Grange Trustees

resolved “to give off the required strip of ground”, was intimated by the EA Club

Committee to the Corporation (per letter to the Corporation dated 29 November

Page 20 ⇓

2011 [JB105; pdf787] and also recorded in gremio the Minute of the Grange

Trustees of 30 November 1911 [JB135; pdf872]);

5) The consent by the Grange Trustees to “the proposed arrangement”, after

recording the burgh engineer’s proposal “to give six feet off the south side of the

field” (per Minute of 30 November 1911 [JB135]), in return for which the

Corporation would erect a new wall (to be 6-feet high on the road side and 9-feet

high on the playing field side) and subject to the proviso that the “site of the

proposed new wall does not encroach beyond six feet into the Academy field”

(“the granters’ stipulation”) (per Minute of the AGM of the Grange Trustees on

30 November 2011 [JB 135 pdf 875) (emphasis added)). The Grange Trustees’

Minute of 30 November 1911 recorded a comment from the Chairman, under

reference to the Grange Trustees’ trust deed, that that deed did not contain an

express power to sell. However, after quoting the Trustees full powers of

management, he expressed the view that the trustees “were entitled to consent,

or at all events would not incur any real responsibility in consenting”. Another

member was recorded as concurring in that view. A third member was recorded

as noting that “by agreeing to the proposal the Trustees were selling or disponing

of some part of the Trust property without being authorised to do so by the Trust

Deed”, but that in view of the others present being in favour of the proposal, he

realised his view would not prevail. It was thereafter recorded as being agreed

that the Grange Trustees would consent to the proposed arrangement but “on the

footing that the [Corporation] accept the Trustees [‘]” letter and do not ask for a

conveyance. The minute also recorded the grantees’ stipulation;

Page 21 ⇓

6) At the meeting of the Corporation’s Streets and Buildings Committee on

2 February 1912 it was noted the Grange Trustees “would agree to give up for the

widening of the street a strip of ground six feet wide along the whole frontage viz

500 feet” on condition that the Corporation “erect a new wall along the new line

of frontage to the clear height of six feet from the level of the pavement, with a

pointed serrated surmount for prevention of climbing”. This was said to be

conditional on five further conditions. The last three are reflected in clauses

Third to Fifth of the Minute of Agreement. The first additional condition was

that the Corporation “do not ask for a conveyance, or, if a conveyance is

required, that the [Corporation] accept the trustees’ title to grant such”. The

second additional condition repeated the granters’ stipulation (as I have defined

it) in the following terms: that the site of the proposed 1912 Wall will “not

encroach beyond six feet on the Academy field from the north side of the existing

wall” (emphasis added) [JB 112 pdf 802].

7) The minutes of the EA Club of 5 December 1912 recorded that the 1912 Wall had

been completed and “that the work had been substantially done and satisfactory

in every way, and had been carried out by the end of September” [JB 123 at

pdf 833]. It will be recalled that the discussions took place under reference to a

plan for the proposed 1912 Wall, though that plan has not been produced (and

cannot necessarily be assumed to be the same as the 1912 Plan).

[32] As the experts speculated about the source of the plan appended to the 1912 Minute

of Agreement, the terms of the letter dated 21 November 1911 from the firm of Leadbetter,

Fairley & Reid to the EA Club should be noted. It was clearly in response to an enquiry

from the EA Club and it noted that the ground “which we understand is to be acquired by

Page 22 ⇓

the [Corporation], which is coloured red on the tracing herewith returned” amounted to .067

of an acre; that if sold at the rate of £1,000 per acre, it would yield a figure rounded up

to £67. It was also noted that the south boundary had been scaled from “the original

ordinance sheet from which the above plan was traced, which we understand to be

sufficiently exact for the purpose” ([JB104; pdf785]. The letter concluded that if an actual

survey were required, the firm would be happy to assist. There is nothing from the other

minutes or other materials produced (many of which post-dated the 1912 Minute of

Agreement) to indicate that this offer was taken up. It is not stated which OS Map was used,

though the parties’ experts were agreed that the plan appended to the 1912 Minute of

Agreement was not traced from the 1895 OS Map. The reference to the “ordinance sheet”

may be to the then most recent OS Map, that of 1908. For completeness, I should note that

the Corporation’s internal assessment of the cost of constructing the new wall was £500.

The 1912 Minute of Agreement

[33] The principal of the 1912 Minute of Agreement was produced. It was a tripartite

deed among the Grange Trustees, the EA Club and the Corporation. The preamble narrated

that the Grange Trustees and the EA Club were respectively the owners and tenants of the

EA Land; that the Corporation had approached them with a view to their “giving up a

portion” of the EA Land for the purposes of road widening and that they had agreed to do

so. So far as material, it provided as follows:

1) Clause First: … that

“[w]ithout any price being received by them [ie by the Corporation], the

[Grange Trustees] and [the EA Club] for their respective rights and interests

hereby give up for the purpose of widening the street of Comely Bank

Road… a strip of ground six feet in width along the whole frontage of [the EA

Land] to said road…”. (Emphasis added.)

Page 23 ⇓

The strip given up (ie “the 1912 Strip”) was described by reference to the

1912 Plan, as the area delineated and coloured pink “on the plan annexed and

signed as relative hereto”. No fuller verbal description of the 1912 Strip was

provided. Consistent with a new break-away conveyance, a full conveyancing

description of the land of which the 1912 Strip formed part (“All and Whole [the

land conveyed to the Grange Trustees under the 1882 deed]”) was provided.

2) Clause Second: … that the Corporation would remove the

“existing boundary wall on the said strip of ground, and shall thereafter erect

a new boundary wall along the frontage of the said [EA Land] to Comely

Bank Road, as widened” (Emphasis added).

It was further stipulated that the wall would be 6 feet in height from the level of

the pavement, with a pointed serrated surmount to prevent climbing. (The

pursuer relies on this additional feature to argue that its principal purpose was

not road widening.) The new wall

“shall be built in a substantial manner and in accordance with the Plan

submitted to and approved by [the Grange Trustees]. The work was to be

carried out as most suitable for [the Grange Trustees] and the [EA Club]”.

3) Clause Third: The 1912 Wall was to be maintained by the Corporation “at their

own expense in all time coming”.

4) Clause Fourth: This required the Corporation to erect a substantial steel screen

“along the line three feet on the field side” to the satisfaction of the EA Club. It

was further provided that the top was to be not less than 6 feet above the

1912 Wall (being to a height of 15 feet high from the ground on the playing field

side) and the screen would be “maintained in all time coming” by the EA Club.

5) Clause Fifth: this certified that the transaction was not part of a larger transaction

and parties consented to registration of the deed.

Page 24 ⇓

As is clear from its notations, the principal of the 1912 Minute of Agreement was presented

for recording in the General Register of Sasines (“the GRS”) for the County of Edinburgh on

2 August 1912 and it bore a 10-s stamp duty (parties disputed whether this was the rate

applicable at that time to a conveyance of land (as the Council contended) or to “any other

deed not described in the schedule”, ie a deed other than a conveyance (as the pursuer

contended).

The plan appended to the 1912 Minute of Agreement

[34] The 1912 Minute of Agreement had a plan appended to it. The principal of the

1912 Minute of Agreement (ie the handwritten version which was stamped and presented

for recording in the General Register of Sasines for the County of Edinburgh) was produced,

as well as a typed version of the same vintage. Both had the same plan appended to it. It

suffices to note what was depicted on the plan appended to the principal of the 1912 Minute

of Agreement (“the 1912 Plan”). (I will use the phrase “the 1912 Plans” when both are

referred to.) This showed a pink area in the form of a long, thin rectangular strip on an

east-west axis along the length, and immediately to the north, of the old estate wall.

Was the 1912 Wall included within the pink area comprising the 1912 Strip?

[35] I was invited to consider the 1912 Plans and to determine whether the proposed

1912 Wall was included within the pink strip. My clear view upon an examination of the

1912 Plans is that the area marked in pink included the proposed 1912 Wall. That the

1912 Wall was included within the 1912 Strip is shown most clearly at the gateway at the

west-most end, where the pink line defining the northern boundary of the pink area was

drawn linking both sides of the north face of the proposed 1912 Wall across the new

Page 25 ⇓

gateway opening. Further, it is evident upon examination that the pink area extended along

the whole line representing the north face of the proposed 1912 Wall. I therefore do not

accept the suggestion that the ink from the pink area has inadvertently bled into the area of

the proposed 1912 Wall. The factor I find most compelling, and which puts this reading

beyond doubt, is the position of the two arrow notations indicating the north and south

points of the 6-foot comprising the 1912 Strip. The north-most of the two arrows points to

the north face of the proposed 1912 Wall; in other words the north face of the 1912 Wall

formed the north boundary of the 1912 Strip. Accordingly, the whole of the 1912 Wall was

encompassed within the 1912 Strip. For completeness, I note that in the plan appended to

the 1913 Missives (relating to the acquisition of a similar strip in the adjoining property to

the east (ie along the frontage of what is now Raeburn House)), the proposed new wall in

front of Raeburn House (which continued along the line of the adjacent 1912 Wall) was also

included within the area of land to be given up and that the northern edges of both

acquisitions align in a continuous straight line.

[36] Accordingly, having regard to the 1912 Plans and the enlargement also produced, I

find that the southern edge of the 1912 Strip was to start from the north face of the old estate

wall (as indicated by the arrow on the 1912 Plan). If the 1912 Plan were followed, the

proposed 1912 Wall would be built on the 6-foot strip to be given up. In short, the pink area

shown on the 1912 Plan included the proposed 1912 Wall. As noted below, other

consequences arising from possession of such a title might flow, if the grantees acquired and

occupied the land up to its physical boundaries. (One possible effect might be to acquire

title to a marginally greater area of land, eg the extent to which the straight 1912 Wall is

marginally more than 6 feet to the north of the slightly curved old estate wall.)

Page 26 ⇓

[37] From this I infer that it was the common intention of the parties to the 1912 Minute of

Agreement that the proposed 1912 Wall be built within the 6-foot strip. The pursuer argued

that this was not conclusive of whether, in fact, the 1912 Wall was built within the 1912 Strip

and they led expert evidence to try to establish that it was not.

Was the old estate wall included within the pink area comprising the 1912 Strip?

[38] Having regard to the common assumption of the pursuer and developers and their

experts, that the old estate wall was also included within the 6-foot strip, it is necessary to

test that assumption against the 1912 Plan and the 1912 Minute of Agreement. The words

underlined in Clause Second (concerning removal of the existing boundary wall “on the said

strip”) would suggest that the 1912 Strip included the old estate wall. However, in

submissions, Mr Barne QC, who appeared for the Council, acknowledged that there was a

certain tension between those words and the 1912 Plan itself, which appeared to exclude the

old estate wall from the pink area. (Neither the developers nor the pursuer addressed that

tension in the evidence or in submissions.) It is therefore necessary to consider whether the

pink area representing the 6-foot strip to be given up included or excluded the old estate

wall. (If included, then the south face of the old estate wall was the south boundary of the

1912 Strip; if excluded, the north face of the old estate wall was the south boundary of the

1912 Strip.) In my view, the pink strip on the 1912 Plan did not include the old estate wall.

This is clear upon examination of the principal of the 1912 Plan (and the enlargement). This

is confirmed, in my view, by the treatment of the old estate wall openings providing access

between the road and the EA Land. It is patent that the old estate wall openings are

uncoloured up to the line representing a continuation of the northern face of the old estate

wall. In other words, the old estate wall openings were excluded from the pink area. It is

Page 27 ⇓

highly improbable that the old estate wall would have been included in the pink area but the

old estate wall openings excluded, as this would have resulted in a peculiar gap-tooth of

different ownerships along the solum of the old estate wall and, once the 1912 Wall was built,

would have left marooned two little rectangular islands (the former old estate wall

openings) inexplicably retained in the ownership of the Grange Trustees. Furthermore, such

a conclusion is patently inconsistent with the straight line of the southern boundary of the

1912 Strip shown in the 1912 Plan. The position of the south arrow on the 1912 Plan,

pointing as it does to the north face of the old estate wall (as the start of the southern

boundary of the 6-foot strip) further reinforces the conclusion that the old estate wall was

excluded from the 1912 Strip.

[39] As noted above, the pursuer and the developers (and their experts) assumed that

the 6-foot strip included the old estate wall and hence their key measurements were taken

from its south face. However, that is not consistent with the 1912 Plan and my finding,

based on it, that the south boundary of the 1912 Strip was the north face of the old estate

wall. (I will address the consequences of that inconsistency in the next section of this

Opinion.)

[40] The exclusion of the old estate wall from the 6-foot strip (as per the 1912 Plan) is

entirely consistent with the Corporation’s road-widening purposes. It may be the case that

no party to the 1912 Minute of Agreement applied its mind to ownership of the solum of the

old estate wall, but it is unlikely that the Corporation would have achieved its intended

purpose of acquiring an additional 6 feet if less than 4 feet of that remained unbuilt on (ie if

both the old estate wall (1 foot 8 inches wide) and the proposed 1912 Wall (1 foot 2 inches

wide, together totalling 2 feet 10 inches) were located within the 6 feet of the 1912 Strip).

Page 28 ⇓

Further, it sufficed to comply with the granters’ stipulation, if the 6-foot strip commenced

from the north face of the old estate wall.

Consideration of extrinsic evidence

[41] In coming to the conclusions that the proposed 1912 Wall was included within the

1912 Strip, that the old estate wall was excluded from it and that the south boundary of the

1912 Strip was the north face of the old estate wall, I have only had regard to the

1912 Minute of Agreement and the 1912 Plans. I note that some evidence was led (without

objection) of certain matters extrinsic to the 1912 Minute of Agreement which might inform

this issue. Indeed, all parties referred to entries extrinsic to the 1912 Minute of Agreement

when making submissions as to its meaning and effect. The extrinsic matters included the

following:

1) The fact that at both ends of the old estate wall its north face is almost exactly

49 feet north of the base point (as demonstrated by figures 2 and 8 of

Mr McCreadie’s second supplementary report (“MR3”)). This coincides with the

only known measurement referred to at the material time by the burgh engineer

in relation to the Corporation’s road-widening purposes. In MR3 Mr McCreadie

plotted the 49-foot line in relation to the old estate wall. (The pursuer’s purpose

in instructing MR3 appears to have been to undermine Mr Laird’s reliance on the

figure of 49 feet as the width of the road way (if this was measured from the inner

aspects of physical boundaries of Comely Bank Road (ie to the south face of the

old estate wall)). What is striking in my view is that at each end of the old estate

wall the 49-foot line coincides exactly with the north face of the old estate wall

and, at its east end, it also coincides with the north face of the wall in front of the

Page 29 ⇓

Raeburn Hotel (which was the subject of the 1913 Missives). Indeed, the 49-foot

line would appear to correlate precisely with the north face of the old estate wall

for a considerable distance from the east end (ie as shown in figures 6 to 8 of

MR3). The 49-foot line also runs in line with the north face at the smaller of the

old estate wall openings. In other words, at each of the most convenient points to

take a measurement to its north face (at the east and west ends and at the

opening towards the middle) the distance is 49 feet (measured from the base

point to the north face of the old estate wall). To the extent that the 49-foot line

and the north face of the old estate wall do not coincide, it is because the north

face of the old estate wall dips slightly to the south at some points. As I

understood Mr McCreadie’s evidence, the maximum amount of that deviation

was about 1 foot.

2) The second extrinsic factor is the evidence of satisfaction of the granters’

stipulation that the strip to be given up did not impinge more than 6 feet into the

playing fields (see para [31(7)], above).

3) The third factor extrinsic to the 1912 Minute of Agreement was the passage from

the meeting on 30 November 1912 of the Grange Trustees stipulating that there

be no conveyance.

[42] The defenders referred to the first two matters, while the purser referred to the third

matter. For completeness, I should note the Corporation’s recording of the agreement

reached (set out at the end of para [31(6)] above), that the encroachment beyond 6 feet was

reckoned from the north side of the old estate wall.

[43] In submissions the question of the admissibility of evidence extrinsic in construing

the 1912 Minute of Agreement was touched upon. As noted above, I have come to the

Page 30 ⇓

findings I have made based on the 1912 Minute of Agreement and so need not consider

these submissions in detail. I would have accepted the defenders’ submission, under

reference to the observations of Lord Walker in Armbister v Lightbourne [2012] UKPC 40,

(2013) 1 P&CR 17 at paragraph 46 and Lord Kyllachy in Hetherington v Galt (1905) 7 F 706

at 713, that for the purposes of determining the boundaries arising from an ambiguous grant

of land regard could be had to conduct post-dating the grant. (While reference was also

made to deeds granted by the Grange Trustees years after 1912 in order to illustrate their

understanding of the position, the scope of the relevant evidence is the conduct of the actual

parties to the 1912 Minute of Agreement, as it is their conduct which is presumed to be in

full knowledge of the objective facts reasonably available to the parties (including their

understanding of their rights), and from which an inference may be drawn). This approach

also accords with Lord Kinnear’s observations in Boyd v Hamilton 1907 SC 912 at 923,

confining the relevant evidence to “facts and circumstances at the time when the grant was

made and to the conduct of the parties immediately following the grant” (emphasis added).

As a consequence, I would have taken into account the matter (set out in paragraph [31(7)],

above) of the EA Club’s post-contract approval of the 1912 Wall as built. The EA Club’s

confirmation that all was in order is highly persuasive that the 1912 Wall was in fact built in

accordance with terms of the 1912 Minute of Agreement. Given this evidence, it is not

necessary to consider the Council’s invocation of the brocard omnia praesumuntur rite esse

acta. The critical features of the 1912 Minute of Agreement (including the 1912 Plan) are that

the 1912 Wall was included within the 1912 Strip and that the south boundary of the

1912 Strip was the north face of the old estate wall. This is also consistent with the evidence

I have noted in para [41(1)].

Page 31 ⇓

[44] However, I would have been disinclined to accept the pursuer’s submission that it

was legitimate to look at the discussion internal to the Grange Trustees, in particular the

query about the vires and the stipulation that there be no conveyance (this is said to be

justified for elucidating the purpose or objective of the parties to the transaction as

referred to in Chartbrook Ltd v Persimmon Homes Ltd, [2009] 1 AC 1101). While the

1912 Minute of Agreement falls to be construed in the context of the facts and circumstances

known or reasonably known to the parties, the discussion referred to among the trustees

was superseded by the final decision of the meeting (the passage the pursuer highlighted

being only part of the discussion) and which better reflects the conclusion of the collective

mind of the Grange Trustees. Even then, that evidence would require to be balanced against

the formal recording several months later of the final conditions in the Minutes of the

Corporation’s Streets and Roads Committee in February 1912 (which provided that, if there

was a conveyance, the Grange Trustees’ title was not challengeable (see the fourth condition,

recorded para [31(6)]) and where (as noted below) features of the 1912 Minute of Agreement

were only required if that deed were a conveyance.

[45] The evidence that the north face of the old estate wall (as envisaged by the 1912 Plan)

reinforces, rather than undermines, Mr Laird’s reliance on that figure.

Resolving the tension between the 1912 Plan and Clause Second of the 1912 Minute of

Agreement

[46] I return to the tension, noted above, between the wording of Clause Second of the

1912 Minute of Agreement (which was suggestive that the 1912 Strip would include the old

estate wall) and the 1912 Plan (which clearly excluded the old estate wall from the

1912 Strip). In my view, in resolving this ambiguity and determining the scope of the grant,

Page 32 ⇓

the 1912 Plan is to be preferred. Clause Second relates to a subsidiary obligation of the

Corporation to remove the old estate wall, which is not dependant on the old estate wall

being part of the 1912 Strip. However, the description in the operative clause (Clause First)

of the land to be given up refers expressly to the 1912 Plan. This reinforces the primacy of

the 1912 Plan in recording the extent of that grant to the Corporation. Two features of the

1912 Plan, the arrow notations and the colouring, both exclude the old estate wall from the

1912 Strip, but they include the proposed 1912 Wall within the 1912 Strip. Accordingly, to

the extent that it is necessary to resolve the tension in the 1912 Minute of Agreement

between Clause Second and the 1912 Plan, I do so by preferring the 1912 Plan on the basis of

the factors just noted.

[47] While Mr McCreadie stated that the 1912 Plan was “indicative”, he simply meant

that it was not drawn to scale (because the measured distance between the arrows did not

correspond to the figure of “6’”). He of course did not use the term “indicative” as

understood in conveyancing practice (and which in that context is contrasted with

“taxative”). Indeed, Mr McCreadie and Mr Laird agreed that the 1912 Plan was not based

on the 1895 OS Map and that the old estate wall was drawn straighter on the 1912 Plan than

it in fact was. It must be observed that the quality of being “straight” is relative. The overall

length of the old estate wall exceeded 110 metres and the extent of deviation from the

straight line drawn between its two ends was no more than about 1 to 2 feet. For most

purposes, this is a straight line. It is notable, too, that the 1912 Plan was not drawn to scale

(as found in MR2) and that it was not based on the more precise 1895 OS Map. This

deviation from a straight line is barely perceptible to the naked eye when examining of the

1895 OS Map - the most precise scale ever used. On my examination of that Map, if there

were a deviation, this appeared to be the old estate wall impinging slightly to the north into

Page 33 ⇓

the field, and not bowing south as the experts found (see para [8(1)], above). It should be

noted that that form of deviation to the south required to be marked on the principal of the

1895 Map in the course of the evidence by one of the experts, with the aid of the computer

software used to examine it. In light of this, there is some force in the defenders’ submission

that this may be no more than an aberration created in the production of the 1895 OS Map or

in the process of digitising it. In any event, the ability to identify and quantify the deviation

from straight was made possible by use of CAD software (both experts note that what they

endeavoured to illustrate on the hard copy paper maps lodged was more apparent if viewed

via the software (a suggestion not pursued at the proof)) as applied to digital version of the

1895 OS Map. These observations call into question the overly exact exercise Mr McCreadie

undertook in compiling the TSD. (A point the Council made in submissions.) It is clear

from its terms that the purpose of the 1912 Plan was not to achieve exactitude in expressing

the relationship of the proposed 1912 Wall to the old estate wall, but to reflect the granters’

stipulation that they lost no more than 6 feet of the playing field as bounded by the

1912 Wall. In the words of the surveyor instructed by the EA Club, a plan “sufficiently exact

for the purpose” (see para [32] , above).

[48] The 1912 Plan is cogent evidence that, in order to achieve the granters’ stipulation,

the proposed 1912 Wall was to be built within the 6-foot strip (ie the 1912 Strip) and also that

parties were unconcerned as to the ownership of the solum of the old estate wall (perhaps on

the assumption that the Corporation already owned it). For the foregoing reasons, I find

that the 1912 Plan is the clearest indication of the parties’ intentions that the location of the

south boundary of the 1912 Strip was the north face of the old estate wall and that the

1912 Wall formed its northern edge.

Page 34 ⇓

The 1912 Wall as a boundary wall

[49] The notations in the 1912 Plan, to the effect that the 1912 Wall was to function as the

new boundary wall, are also consistent with the 1912 Minute of Agreement, namely, the

references therein to “boundary” walls. The old estate wall is described as “the existing

boundary wall” at the beginning of Clause Second, and which is to be replaced by the

erection of “a new boundary wall” - ie the 1912 Wall - “along the frontage of the …Field…. ,

as widened”. The reference in each case to the 1912 Wall and to the old estate wall as a

“boundary” wall is, in my view, highly significant. This demonstrates that the parties’

common intention was that the old estate wall had marked, and the 1912 Wall would mark,

the dividing line of their respective lands. It was enough for these purposes to depict the

old estate wall and the 1912 Wall as straight lines. There was no need for the 1912 Plan to be

drawn to scale. It should be noted, too, that by the time the 1912 Minute of Agreement was

executed, the parties had already agreed the location of the 1912 Wall, which was to be built

“…in accordance with the Plan already submitted to and approved by [the Grange

Trustees]”: see Clause Second. In these circumstances none of the parties was concerned

that the construction of the 1912 Wall as a straight line between its two ends might result in

the Corporation obtaining marginally more than 6 feet (at those points where the old estate

wall bowed slightly to the south, if the parties had even noted this), than if the irregular

(ie the minor deviation from straight) contours of the old estate wall were precisely

replicated (ie to ensure that the 1912 Wall was exactly 6 feet to the north of the old estate

wall at all points). The figure of 6 feet was indicative of the proportions of the 1912 Strip

from north to south; that figure was not prescriptive of the line of the northern boundary of

the 1912 Strip. The proper measure of the extent of the grant on its northern boundary was

the 1912 Wall itself qua boundary wall.

Page 35 ⇓

Conclusion that the Pursuer’s Disputed Strip does not exist

[50] The characterisation in the 1912 Minute of Agreement of the 1912 Wall as a boundary

wall is fatal to the pursuer’s case. If, as I have determined, the 1912 Wall was included

within the 1912 Strip, then the land granted to the Corporation in 1912 included up to the

north face of the 1912 Wall (regardless of precisely where it was built) and the southern

boundary of the granters’ land was to the north face of the 1912 Wall which the Corporation

had acquired. There was therefore no scope for a putative gap or strip of land to exist

(ie outwith the grant of the 1912 Minute of Agreement) between the south face of the

1912 Wall and the northern edge of the 1912 Strip - the existence of which was the

fundamental premise of the pursuer’s case. On that analysis, no gap or Disputed Strip is

capable of coming into existence immediately to the south of the 1912 Wall.

[51] That finding is sufficient to dispose of the action in favour of the defenders, as the

pursuer’s case is essentially predicated on establishing the existence of the Disputed Strip as

a gap between the northern line of the 1912 Strip and the 1912 Wall. However, even if the

Disputed Strip potentially existed, there is a further difficulty for the pursuer’s case. This

concerns the location of the putative gap and arises from the extrinsic evidence noted at

para [41(1)] above. The thrust of the pursuer’s expert evidence was to demonstrate that the

distance between the south faces of the old estate and 1912 Walls was more than 6 feet and

that this resulted in a gap between the northern boundary of the 1912 Strip and the south

face of the 1912 Wall. However, if it is correct that the eastern and western ends of the south

face of the 1912 Wall were 6 feet to the north of the north face of the old estate wall, and if

the 1912 Wall was built on the straight line between those two end points as indicated on the

1912 Plan (suppositions borne out by the GL Survey 2000 and confirmed by Mr Laird’s

Page 36 ⇓

Report and the Overlay), then any “gap” between the 1912 Strip (if assumed to be exactly

6 feet in width along its whole length) would appear immediately to the north of the north

face of the old estate wall (ie in its modest concave curve). This follows because the northern

part of the 1912 Strip comprised the 1912 Wall, and the Corporation (and thereafter the

Council) occupied or had control of the 1912 Strip up to the north face of the 1912 Wall.

[52] Accordingly, even if the 1912 Minute of Agreement (including the 1912 Plan) had

admitted of the possibility of any “gap”, this was of no avail to the pursuer, for the simple

reason that because the north face of the 1912 Wall was the north boundary, any gap would

be to the south of the 1912 Strip (ie in the slight concave curve where the old estate wall

bowed south), and not to the north of it (as the pursuer presumed). In other words, even if

the Disputed Strip existed, it was not where the pursuer contemplated. Any gap

constituting the Disputed Strip was, for the pursuer’s purposes, in the wrong place. It was

not encompassed within the 2018 Disposition. This conclusion suffices to determine that the

pursuer’s action fails. However, in deference to the evidence led at proof and the detailed

submissions advanced, I consider these in Appendix C to this Opinion.

Disposal

[53] The pursuer’s action fails. As is apparent from my determination of the other issues,

the defenders have succeeded on most of their lines of defence. I reserve meantime all

question of expenses.

Page 37 ⇓

APPENDIX A to OPINION

The pursuer’s expert witnesses

Mr McCreadie’s evidence

[1] The pursuer led the evidence of Mr David McCreadie, of 3D Measuring and

Modelling, a geospatial engineer with expertise in many areas of geomatics including

mapping, 3D city and infrastructure modelling, survey of heritage sites and historical digital

reconstruction. He spoke to his principal report (“MR1”) and his two supplementary

reports (both dated 26 August 2019); his first supplementary report (“MR2”) concluded that

the plan appended to the 1912 Minute of Agreement was indicative only, and his second

supplementary report (“MR3”) sought to determine the degree of deviation in the line of the

wall.

Mr McCreadie’s principal report (“MR1”)

[2] In brief, the steps he employed in MR1 were as follows:

1) Historic mapping and other data: Mr McCreadie researched the historical

records and identified (i) the 1895 OS Map, which was produced to scale of 1:500

(which was unique, as subsequent OS maps were produced to lower scales) and

which depicted the old estate wall, and (ii) the 1914 OS Map, produced to a scale

of 1:2500, which depicted the 1912 Wall. The scale of the 1895 OS Map permitted

any feature of 6 inches or greater to be depicted. By contrast, the scale of the

1914 OS Map was accurate only to +/- 19.7 inches, which was regarded as too

imprecise for the desiderated accuracy. Reference was also made to a “Structural

Condition Report” associated with a planning application (“the 2012 Condition

Report”), the photographs of which depicted a degree of undulating bowing or

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historic movement of the 1912 Wall as the trees to the south matured. This was

said to be a further reason why the 1912 OS Map was inadequate.

2) Topographic Survey: Mr McCreadie undertook a topographic survey (to a scale

of 1:50) of the physical features of the ground and structures on either side of

Comely Bank Road using laser scanning instruments, the data from which

generated 3-dimensional “point cloud” of all physical features. The images thus

generated are photograph-like in their depiction of physical features, but enable a

greater degree of accuracy than measures estimated from photographs. From

this data a vector map (generated with computer-aided design (“CAD”)

software) was made, depicting the physical features in two-dimensions.

3) Adding the old estate wall to the Topographical Survey Data (“TSD”): In order

to relate the TSD to the 1895 OS Map, a digital version of the latter was

purchased. The digital 1895 OS Map was rescaled in order to have it agree with

the scale of the TSD, in effect, enabling the features on the 1895 OS Map (now

scaled to 1:50) to be plotted onto the digital TSD. This exercise in geo-referencing

did not involve distortion of the 1895 OS Map. (In parole evidence, he explained

that he used six reference points, as this was said to improve the accuracy. As

noted below, Mr Laird was criticised for using only two reference points.) The

digital 1895 OS Map was overlaid with the TSD. There was a very close

agreement of the two data sets (ie a very close alignment of features shown on

both) to conclude that they were accurate to +/- 3.9 inches. The next step was to

incorporate the old estate wall into the TSD (again, using proprietary CAD

software).

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4) Adjusting for distortions in the 1895 OS Map: On the basis that the digital

version of the 1895 OS Map acquired from the National Library of Scotland

would have been scanned from an older paper map, it was anticipated that there

would be some distortions. The minor dis-alignment of the south and west walls

of what is known as the Raeburn Hotel illustrated this. As a cross-check, a

measure from the southwest corner of the Raeburn Hotel to the south face of the

old estate wall based on the 1895 OS Map produced a distance of 14.136 metres,

whereas the same physical features were measured at a slighter shorter distance

of 14.012 metres (ie a difference of .124 metres (or 4.9 inches)). This difference

was used to make an adjustment to other measurements. In particular, this

justified moving the traced position of the old estate wall south by this distance

(“the alignment adjustment”).

5) Adding the 1912 Wall to the 1:50 scale TSD: Having rejected the 1914 OS Map as

insufficiently accurate, Mr McCreadie sought a means to add the 1912 Wall to the

combined data sets of the digitised 1895 OS Map as overlaid on the

2-dimensional vector plan of the TSD. To that end, he sought evidence on the

ground for the positions of the 1912 Wall at its east and west ends. He reviewed

photographic evidence (taken while the 1912 Wall was still standing) as well as

other material (including a plan) from a 2012 Condition Survey produced in 2012.

Mr McCreadie was satisfied that the accuracy of the east and west points were

+/- .4 inches. These were plotted onto the combined data set and a straight line

then drawn between them to represent the 2012 Wall. As a crosscheck, the

location of the 1912 Wall as depicted in the 2012 Condition Report (once rescaled)

was also overlaid on the combined data set. This was said to demonstrate the

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close alignment between that survey and Mr McCreadie’s exercise, albeit

Mr McCreadie explained that the 2012 Condition Survey reflected the then state

of the wall (including the distortion caused by the trees). The south face of the

1912 Wall ascertained by the TSD was similar to or a little south of that shown in

the 2012 Condition Report. The discrepancy was explained by the fact that the

2012 Condition Report showed the 1912 Wall, as distorted by the growth of

substantial trees immediately to the south, and which had the effect of tilting

parts of the 1912 Wall to the north in an undulating pattern.

6) Measurements from the TSD: The steps described in the preceding

sub-paragraphs created a single data set containing the locations of the north

and south faces of the old estate wall and the south face of the 1912 Wall, and

from which measurements could be taken using the software at 10 metre

intervals along the walls from east to west. Each measure was from the south

face of the 1912 Wall and the south face of the old estate wall. In each case, the

distance between these two south faces was at least 6 feet 6 inches and toward the

middle was as wide as 7 feet 9 inches. If these measurements were adjusted to

reflect the alignment adjustment (see sub-paragraph (4), above), then the

distances increased, viz the minimum distance was 6 feet 6 inches and the

maximum distance was 8 feet.

7) Conclusions: Mr McCreadie concluded that the 1895 OS Map met the RICS

criteria for accuracy for a 1:500 scale map (this was demonstrated by its

alignment with the TSD), although there were small distortions caused by

digitising the 1895 OS Map, and the location of the old estate wall could therefore

be plotted with a high degree of certainty onto a vector plan generated by the

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TSD such that its position could be established to +/- 3.9 inches). A combination

of field and photographic observations enabled the 1912 Wall (or, more

accurately, its south face) to be established to +/- .4 inches. This enabled the

distances between the respective south faces of the old estate wall and the

1912 Wall to be determined, and once the alignment adjustment was made this

varied from between 6 feet 6 inches to 8 feet.

[3] The conclusion Mr McCreadie reached in MR1 was that the distance between the

south face of the old estate wall and the south face of the 1912 Wall was never less than at

least 6 feet 6 inches along its entire length (being 6 feet 7 inches at its east end, 6 feet 6 inches

at its west end, and at most some 7 feet 9 inches at the approximate mid-point, where the

wall bowed to the south). After allowing for an adjustment (which was said to better align

the digitised version of OS 1895 with his own TSD), the distance was never less than at least

6 feet 6 inches along its entire length (being 6 feet 11 inches at its east end, 6 feet 6 inches at

its west end, and some 8 feet at the approximate mid-point, where the wall bowed to the

south).

Supplementary reports of Mr McCreadie

[4] As noted above, Mr McCreadie prepared two supplementary reports:

1) MR2: In this report Mr McCreadie considered the accuracy of the 1912 Plan.

Mr McCreadie concluded that this was probably traced from the 1895 OS Map (as

augmented by additional notations of structures post-dating the 1895 OS Map

but which are not here relevant). However, Mr McCreadie concluded that the

old estate wall was simplified as depicted on the 1912 Plan, essentially because

the thickness of the old estate wall was inaccurate (the old estate wall was 1 foot

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8 inches on the 1895 OS Map but appeared to be only 1 foot on the 1912 Plan) and

because the south face of the old estate wall was drawn in a straighter line than

on the 1895 OS Map. He also noted that the arrows indicating a 6-foot width

were positioned at the north face of the old estate wall and “perhaps” to the

north face of the proposed 1912 Wall. While the notation was that the distance

between the arrows was 6 feet, the scaled measure was closer to 4 feet 11.3 inches.

2) MR3: The purpose of this report was to consider the reliance by Mr Laird (the

Developers’ expert) on the 49 foot measurement (including a 7 foot wide pavement

to the north of Comely Bank Road), which figures were derived from the burgh

engineer’s report in 1911. Mr McCreadie concluded that these figures were not

accurate. The 1895 OS Map depicted a pavement width of between 5 feet and

6 feet 6 inches. In relation to the measurement of 49 feet as the width of Comely

Bank Road between the base point and the south face of the old estate wall,

Mr McCreadie checked this on the 1908 OS Map. While this did confirm the figure

of 49 feet, the standard deviation was +/- 1 foot 8 inches. Essentially, in MR3

Mr McCreadie plotted a line 49 feet from the north face of the garden walls of the

properties on the south side of Comely Bank Road (“the base point”) onto the TSD

to show that (at certain points) the notional line of 49 feet drifted a little to the

north of the old estate wall (as depicted on the 1895 OS Map). Mr McCreadie

concluded that the north face of the garden walls on the south side of Comely Bank

Road (ie the base point) were not in a straight line. Accordingly, he used a degree

of judgment as to where to draw the notional 49’ line to the north of this

admittedly varying base point. An examination of the depiction of the yellow line

(in the seven separate segments showing the whole length of the old estate wall in

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close up) shows that the yellow line (being a notional 49 feet north of the base

point) coincided pretty precisely with the north face of the old estate wall -

especially at its east and west ends (ie on figures 2, 7 and 8). At other points the

yellow line was a little to the north of the north face of the old estate wall. While

the degree of drift varied, Mr McCreadie confirmed in his parole evidence that the

maximum difference was 1 foot 8 inches. This was said to reinforce the conclusion

that the 1912 Wall was built to the north of the 1912 Strip. Mr McCreadie surmised

that in 1911 no one checked the actual position on the ground. He also surmised

that because on his TSD the south face of the 1912 Wall was built within a few

inches of a line 13 feet from the north road kerb of Comely Bank Road, the

instruction at the time was to build 13 feet from it (ie allowing a 7 foot kerb). From

this he concluded that the 1912 Wall was further than 6 feet from the south face of

the old estate wall.

Cross-examination of Mr McCreadie

[5] Mr McCreadie was cross-examined in relation to the following:

1) He accepted that he had not seen the instructions to the surveyors for

compilation of the 1985 OS Map, but he believed he understood fieldwork

instructions for the production of maps to various scales.

2) He believed, in common with Mr Laird, that the Corporation would have

continued to update their own reference OS maps themselves, though he

accepted that none had been produced. He believed that the 1912 Minute of

Agreement Plan was derived from such an updated map internal to the

Corporation and not from the 1895 OS Map.

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3) He accepted that a figure of 49 feet did not feature on any of the

contemporaneous maps produced, though he tried to suggest that this figure

might indicate considerable rounding up as no inches were stated. He

acknowledged that the burgh engineer might have made a measure on the

ground, but he thought it more probable that this figure was produced from

drawings already held because he could find no width of 49 feet (ie from the

inner aspects of the physical features bounding the road) on the basis of any

OS map. He was doubtful that the burgh engineer undertook a measurement, as

he maintained that he has no idea how the figure of 49 feet was derived. He did

accept that the 1908 OS Map had the same figure.

4) He also accepted that it was not specifically stated that that figure of 49 feet was

necessarily the distance between the inner faces of the physical features bounding

the road (ie the south face of the old estate wall and the base point).

5) Under references to the arrows on the 1912 Plan, he accepted that they pointed to

the north faces of the old estate wall and the proposed 1912 Wall, and that this

evinced an intention to define the parameters of the 6-foot strip.

6) He accepted that on the 1912 Plan both the proposed 1912 Wall and the old estate

wall was shown as straight.

7) He clarified that the alignment adjustment he proposed was simply to achieve a

better alignment in that area (ie in the vicinity of the Raeburn Hotel) but not that

the 1895 OS Map was inaccurate.

8) He and Mr Laird agreed that the location of the north face of the old estate wall

was as plotted by Mr McCreadie and that they were also agreed as to the position

of the north face of the old estate wall at its east and west ends. He was critical of

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Mr Laird for not appreciating that the old estate wall was not straight and for not

noting that the old estate wall was bowed to the south. He was also critical of

Mr Laird for assuming that both walls had the same width: they did not, as the

1912 Wall was, at 1 foot 2 inches, ie about 6 inches thinner than the thickness of

the old estate wall.

9) He accepted that his report was critically dependent on the 1895 OS Map. He

rejected the proposition that this might be inaccurate due to reproduction via

zincography.

10) He resisted the proposition that some features on the 1895 OS Map would simply

be symbolically represented (as opposed to actually representing a feature).

While he acknowledged that that may be the case for vegetation, he was positive

that man-made structures (such as garden walls) would be measured. That was

what he was instructed to do when he undertook this type of survey work earlier

in his career.

11) He accepted that the maximum bowing of the old estate wall to the south was no

more than 1 foot 6 inches, that the width of the old estate wall was 1 foot 8 inches

and further, that the extent of the bowing to the south was never more than the

width of the old estate wall.

12) The plan appended to the 1913 Missives relating to what is now Raeburn Hotel

was put to him, as showing the best relationship between the 1912 Wall to the

south of the EA Land (as depicted on that plan) and the then-extant line of the

old estate wall in front of the Raeburn Hotel. Mr McCreadie repeatedly declined

to express a view on the distance between the two plans, in the absence of

scanning this to a CAD system.

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[6] While other topics were explored (eg techniques of zincography, how the NLS

digitised maps, the meaning of certain notations or abbreviations (not related to the features

under consideration), the standards of the RICS guidance and the function of redundancies

in mapping techniques), they did not generally assist in clarifying the relevant issues.

No challenges to Mr McCreadie’s methodology and evidence

[7] While there were challenges to features of Mr McCreadie’s evidence, there was no

fundamental challenge to his methodology.

Comment on MR3

[8] On examination, the 49 foot line Mr McCreadie plotted onto his TSD coincided

almost precisely with the east and west ends of the old estate wall. The north face of the old

estate wall and the notional 49 foot line matched almost exactly, when shown overlaid in

figures 8 and 9 and the east-most half of figure 6 - a distance of c 40 metres (assuming

figures 2 to 8 cover the whole 117 metres) in MR3.

The developers’ expert evidence: Mr Laird

[9] The developers led Bryan Laird, a civil engineer, who is employed by Harley

Haddow (Edinburgh) Limited (“HH”) as a principal engineer. He had worked in that

capacity since 2016 and as an engineer for 22 years. He spoke to Harley Haddow’s role in

the development. They prepared the applications under section 56 of the Roads (Scotland)

Act 1984 for works to be carried out on the public roads, including along the frontage of

Comely Bank Road.

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[10] Mr Laird spoke to the topographical survey Overlay assessment diary prepared by

Harvey Haddow in May 2019 (“the Overlay”). The Overlay was essentially a desk-top

study of a number of earlier topographical surveys (including the 2000 GL Survey) to

determine the location of the 1912 Wall. It is not necessary to detail the other surveys, as the

relative notations on the Overlay did not provide more information than that contained in

the 2000 GL Survey. (The Overlay did not consider the 1895 OS Map; it was based on

topographical surveys.) The following were depicted on the Overlay:

1) The line of the 1912 Wall as disclosed in the 2000 GL survey was depicted on the

HH Overlay (as an unbroken green line). Two reference points relating to

identifiable physical structures were used to correlate the 2000 GL and another

survey. (Mr McCreadie undertook the same geo-referencing exercise, but used

6 points, not just 2, a point of criticism made of the 2019 HH Report);

2) As Mr Laid had been advised that the old estate wall was 49 feet from the base

point, this was marked on the plan (as a dashed green line); and

3) Further, on the basis that the Corporation had acquired a 6-foot strip in 1912, this

was represented by two parallel dashed brown lines, from the north and south

faces of the 1912 Wall (as derived from the 2000 GL Survey).

[11] On analysis, the dashed green line representing the 1912 Wall (presumed to be

49 feet north of the base point) fell within the parallel lines representing the 6-foot strip

(ie the 1912 Strip). The foregoing steps demonstrated that it was reasonable to conclude that

the 1912 Wall was constructed “in line with historic minutes with tolerance”. He explained

“tolerance” as constructed in accordance with the dimensions of the thickness of the wall.

[12] Mr Laird also spoke to the 2012 Condition report, which Harley Haddow had

prepared.

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Examination in chief of Mr Laird

[13] In his parole evidence, Mr Laird confirmed that he did not challenge Mr McCreadie’s

laser scanning. He agreed with Mr McCreadie that the burgh engineer in 1911 probably used

a locally updated town plan. He agreed with the surmise (in Mr McCreadie’s report) that the

burgh engineer probably used a more accurate locally updated plan than a larger scale

(ie less accurate) plan such as the 1908 OS Map.

[14] He was asked questions eliciting evidence on photozincography as a means of

producing the 1895 OS Map, notations on the 1895 Map (which were unrelated to the

location of the old estate wall) and (under objection) what were said to be a number of

distortions on the 1895 OS Map, only one of which related to the old estate wall. He agreed

that if one scaled off the 1912 Minute of Agreement Plan, the strip was not 6 feet.

[15] Mr Laird was asked to consider the 1913 Missives Plan and, using a scale ruler, he

estimated that the width of the strip to be given up was 6 feet from north face to north face

or from south face to south face. This was not the most accurate way to do this but it was a

reasonable method. On the questioning of discrepancies in scaling from old maps (under

reference to Mr McCreadie’s alignment adjustment), Mr Laird explained that these would

always arise when comparing an old map and a new survey, and when one tried to fit one

image to another. One needed reference points to match orientation and scale to achieve a

“best fit”. This will not always be 100% accurate. One can do this using two points, as using

more can cause distortion at some point on the map.

Cross-examination

[16] The following points were elicited in cross-examination:

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1) He did not accept that the measure he took off the scale of the 1913 Missives Plan

might be inaccurate to +/- a 1 foot; at most the degree of inaccuracy was only to

2 or 3 inches.

2) It was not difficult to determine the position of the 1912 Wall, as this was

depicted as it existed in 2000 (from the GL Survey 2000).

3) Apart from using the figure of 49 from the burgh minutes of 1911, he did not

undertake any other measurements on the ground. He used nothing else to

determine the position prior to the 1912 Wall.

4) He was challenged as just assuming that the old estate wall was 49 feet from the

base point; that he had wrongly assumed that the old estate wall was exactly

parallel and was a straight wall. Mr Laird accepted that if the old estate wall was

not straight the width of the road might vary, with the result that it might only be

49 feet wide at some points. He did not assume that the old estate wall was

straight, but he did use the same offset from the base point. He assumed the

burgh engineer would have measured from the base point to the south face of the

old estate wall.

5) He had assumed that the thickness of the 1912 Wall was the same as the old

estate wall, when undertaking his assessment.

6) He spoke in detail to the Overlay and he accepted that on it parts of the 1912 Wall

were to the north of the notional line of the old estate wall (if drawn as exactly

49 feet to the north of the base point). He accepted that if the old estate wall

bowed to the south, this would not be reflected in the notional line drawn at a

distance of 49 feet from the base point. On that hypothesis, the gap between the

south faces of the old estate wall and of the 1912 Wall would exceed 6 feet. He

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also accepted the further propositions that if the 1895 OS Map was correct (ie the

old estate wall was not an entirely straight wall along its whole length), then the

notional 49 foot line will not coincide at all points with the old estate wall, and,

further, that if the 1912 Wall were built in line with the old estate wall, this, too

would vary. He also accepted that the orange line drawn at 49 feet did not

represent an actual wall; it was a 49 foot offset or line parallel to the base point.

7) He accepted that there was no physical way to verify that the old estate wall and

the 1912 Wall were exactly 6 feet apart. He had assumed that the dimensions

minuted were correct.

Comment on expert evidence

[17] An usual feature of the expert evidence in this case is that the court is not

adjudicating between two experts using the same methodology, but coming to different

conclusions. Rather, the experts here adopted very different methodologies -

Mr McCreadie’s map-based TSD and Mr Laird’s mathematical exercise of applying the

figure of 49 feet to a desktop survey of older topographical surveys - and it is therefore not

surprising that their conclusions do not coincide.

[18] I have already explained in the body of the Opinion why the assumptions that the

relevant starting point was the south face of the old estate wall or that it was included in the

1912 Strip are, in my view, incorrect. This affected Mr McCreadie’s evidence to a greater

extent than Mr Laird’s evidence. That matter aside, I would not have been prepared to

accept Mr McCreadie’s conclusions. This is for several reasons.

[19] First, if the point of the exercise is to identify the 1912 Wall, the better starting point

is to begin with the known data (ie the GL Survey 2000), rather than the position of the old

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estate wall as shown on the 1895 OS Map. On his approach Mr McCreadie was always

compelled to make assumptions about the relationship between the two walls, viz as

evidenced by assumptions that the 6-foot strip comprising the 1912 Strip was measured

precisely from the varying contours of the old estate wall.

[20] Furthermore, Mr McCreadie’s adherence to the assumption that the figure of 49’

necessarily related to the inner aspect (or south face) of the old estate wall precluded him

from recognising the several points when the figure of 49 feet coincided exactly with known

points, the most important of which are the east and west ends of the old estate wall (see

para [41[1)] of the Opinion).

[21] Moreover, his whole approach (of starting with the old estate wall) is inconsistent

with the parties’ intentions that no more than 6-feet was lost to the playing fields. Taken

literally, this stipulation would dictate the precise replication of the uneven contours of the

old estate wall. All of the evidence suggests that this was not done: the 1912 Plan did not

disclose an uneven boundary on the 1912 Wall and, as built, the 1912 Wall was straight.

[22] Given that the old estate wall was generally straight and that any deviation was at

most 1 foot 8 inches or so, it mattered not to the parties to the 1912 Minute of Agreement

that, in providing for (and approving the construction of) a straight wall, marginally more

than 6-feet was taken at several points toward the middle of the 1912 Strip.

[23] Accordingly, I would have placed little weight on the evidence of Mr McCreadie. I

stress that this is no criticism of his skill, credibility or reliability. He was simply instructed

to proceed on the basis of a wrong assumption and to employ a methodological exactitude

that was not commensurate with what may be inferred of the intentions of the parties to the

1912 Minute of Agreement. The pursuer has therefore failed to prove the existence of the

Disputed Strip, which was the essential premise of its action.

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APPENDIX B to OPINION

The Witnesses to fact and expert witnesses (other than Messrs McCreadie and Laird)

The pursuer’s witnesses to fact

[1] The pursuer led the following witnesses to fact.

Ian Douglas Lowe

[2] Mr Lowe narrated his background, career, appointments, wider business interests,

involvement in the Grange Trust, and personal views as to the location of the 1912 Wall

(which have varied considerably) but this is not relevant to the issues at proof. (Nor, it

might be said, is the evidence elicited in cross-examination about those changes of belief.)

He is the principal behind the pursuer, having purchased that company in the late 1970s. In

the belief that the 1912 Wall was not constructed on the 1912 Strip, but built to the north of

it, he sought to acquire the solum thereof via the 2018 Disposition and he arranged for

contractors to paint a red line along what he believed to be the centre line of the solum. He

confirmed in his parole evidence that he had no input from surveyors as to the location of

the red line, but he believed it represented the approximate centre point of the 1912 Wall.

He also confirmed the photographs he had taken in February 2015 of the pavement area.

Mr Lowe was referred to a valuation report from DM Hall dated 6 July 2019 of the

development. This narrated that there was no alternative usable access to the frontages of

the retail units other than via the pavement adjoining Comely Bank Road but that the five

entrance points along that road had been completed. Mr Lowe confirmed that he had

provided the assumed rentals recorded in the table at page 9.

[3] Mr Lowe was cross-examined extensively by the developers on a number of topics of

no obvious relevance to the issues (eg his views of some of the materials pre-dating the

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1912 Minute of Agreement, his interpretation of the 1912 Plan, his views on the 1882 trust

deed creating the Grange Trustees, his attendance in 2017/2018 at meetings of the Grange

Trustees, his change of views of the location of the solum of the 1912 Wall relative to the

1912 Strip), but he did confirm that he had advised Andrew Carrie, the author of a report

addressing inter alia the function of the 2012 Wall, to proceed on the basis that the 1912 Wall

had been built to the north of the 1912 Strip. (See paragraph 3.3 of the Carrie Report and

that he (Mr Lowe) was the author of a draft diagram appended to that report which

purported to show this.) The Council also pressed Mr Lowe on his change of position as to

his understanding of the location of the 1912 Wall relative to the 1912 Strip. Nothing of

significance was elicited in re-examination, as this rehearsed some of the 1912 documentary

materials, Mr Lowe’s change of position and the terms of the 2018 Disposition.

Michael Baynham

[4] Mr Baynham, a qualified solicitor, is the pursuer’s company secretary. He has

worked closely with Mr Lowe for 30 years. He instructed solicitors in relation to the

2018 Disposition and liaised with David Jennings about the plan appended to it. He

repeated the belief that the 1912 Wall was built to the north of the 1912 Strip.

[5] He was cross-examined under reference to the Keeper’s Guidance on “undefined

boundaries”, which provided that if there were no physical boundaries then metric

measurements were required. Mr Baynham acknowledged that there were no metric

measurements in the 2018 Disposition and he agreed that the plan appended to the

2018 Disposition did not comply with the Keeper’s Guidance. It was put to him that in the

case of an undefined boundary without measurements, the Keeper will find it difficult to

delineate boundaries. Mr Baynham accepted that proposition but he did not have practical

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experience. He had not been aware of the Keeper’s Guidance until the week before giving

his evidence. His position was that it was only guidance. To be registrable the property had

to be recordable on a cadastral map. There had been no response by the Keeper to the

2018 Disposition and no entry on the title sheet of the Land Register in respect of the

2018 Disposition.

[6] In cross on behalf of the Council, the “one-shot” rule of the Keeper was put to him,

which was to the effect that if there was a critical defect the Keeper would reject the

application. Mr Baynham demurred, having attended a recent conference at which the

Keeper had indicated that if no fatal flaw had been identified within 35 days an application

for registration would not be rejected.

[7] In re-examination, Mr Baynham confirmed his understanding of clause 5.6.2 of the

missives preceding the 2018 Disposition that if the Keeper rejected the plan, the seller was

obliged to correct the plan to enable the Disposition to be registered.

Alan Robert Motion

[8] Mr Motion, who was a Chartered Forester, a Consultant Arboriculturist and director

of his consulting business, was instructed in 2012 by architects to carry out a survey of the

trees around the playing fields, including those to the north of Comely Bank Road. He was

instructed in 2016 to update his report and in 2017 he produced an Arboricultural Method

Statement for the developers, to address the question of impact on these trees. (A large part

of his statements was taken up with a discussion of the tree roots which is not here relevant

and he was not taken to any of his own reports in his parole evidence.)

[9] Some of the trees surveyed were situated between Comely Bank Avenue and the

1912 Wall. He estimated that these trees were about 80 to 85 years old. In his

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supplementary witness statement, Mr Motion referred to his further instructions in

connection with the trees north of Comely Bank Avenue and his subsequent report in 2017.

In relation to the function of the 1912 Wall, in his view it was “clear” that the 1912 Wall had

a retaining purpose, given the difference between the ground levels on either side of the

wall. He estimated that the pavement side was about 1 metre higher than the ground on the

playing field side, and that the wall functioned to support the higher ground.

[10] The structural condition report prepared in October 2012 by Michael Laird Architects

(“the 2012 Condition Report”) showed the trunks of many of these trees, of a mature age,

hard up against the 1912 Wall and it showed that the upper parts of the 1912 Wall had been

moved off the vertical. The 2012 Condition Report contained cross-sections of the 1912 Wall

and notations of the “retention” or height differential of the ground on either side of the wall

as varying between 510 and 740cm. The wall was stated to be 2.5 metres high from the

playing field side and 1.5 metres high on the road side. Under reference to one of the

cross-sectional drawings, Mr Motion confirmed that the displacement of the top of the wall

was up to 100 mm and coincided with the location of trees. The displacement was not

uniform along the whole length of the 1912 Wall. It undulated.

[11] In cross-examination, he confirmed that the base of the wall would not generally

have moved to the same degree as the top, although in re-examination he accepted under

reference to one photograph that the displacement at the top and bottom of the wall was

similar.

David Jennings

[12] Mr Jennings, a solicitor in private practice for 39 years, was the solicitor instructed on

behalf of the pursuer as the disponee of the 2018 Disposition. He explained that as the title

Page 56 ⇓

to the property had not previously been registered, it was necessary to instruct a plan for the

disposition that complied with the requirements of the 2012 Act. He instructed Millar &

Bryce for this purpose. He also submitted the usual application for registration to the

Keeper of the Land Register in about September 2018. To the best of his knowledge, the

Keeper has not rejected that application.

[13] He was cross-examined about aspects of the description and plan, confirming that

the south boundary of the strip of the subjects of the 2018 Disposition now lay under the

pavement and that there was no physical feature on the ground reflecting this. It was put to

him that the 2018 Disposition did not conform to the Keeper’s Guidance. Mr Jennings

resisted this; only the southern boundary was without a physical boundary. He had spoken

to an individual within the Keeper’s plan section the week before giving evidence, who

confirmed that a disposition would not be rejected for want of a measurement so long as the

land could be identified by other features or if sufficient surrounding detail could be

combined with sufficient scaling. While the application in respect of the 2018 Disposition

had been with the Keeper for a long time, he understood it still to be pending.

Hannah Ross, Ruth MacDonald and Dame Sue Bruce

[14] The pursuer’s list of witnesses contained three individuals who were senior officials

or staff within the Council, namely Hannah Ross, Ruth MacDonald and Dame Sue Bruce,

but their written statements were agreed to be their evidence in chief, and they were not

called. It would appear that one or more of these individuals expressed their views on the

question whether the Council or the Grange Trust owned the 1912 Strip or the 1912 Wall, or

whether the 1912 Minute of Agreement was an effectual conveyance. (Mr Lowe points to

these communings as the basis for the view he formerly held, from which he has since

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departed, that the Council owned these.) As these matters are legal questions, or mixed

questions of fact and law, this evidence is of no relevance. Indeed, no reference was made to

the evidence of any of these witnesses in closing submissions.

The pursuer’s expert witnesses

Michael Court and the DM Hall Report

[15] Michael M Court, a MRICS and a partner of DM Hall, spoke to the valuation report

dated 7 July 2019 (“the DM Hall Report”) of the development. He valued the development

at £9.6 million and the value of the solum of the 1912 Wall at £4.8 million. The latter

valuation was predicated, essentially, on the Disputed Strip as a ransom strip (ie outwith the

ownership or control of the defenders (and to which he says he applied the principles in

Stokes v Cambridge (1961) to the effect that the ransom strip owner gets 50% of the

development value) and the absence of any other means to access to the retail units on the

development site. He confirmed he was asked to assume that the pursuer owned the

Disputed Strip.

[16] It was put to him in cross-examination that in 2015 he had valued the solum of the

1912 Wall for the Grange Trustees at £1000. He explained that this was a different

calculation, a “surrender value calculation”, so a nominal value. He had assumed that the

1912 Wall had been punctured at five places; at least there were five places where the

foundations had been removed. He confirmed that Mr Lowe gave him the information

about rental rates, but said he had also satisfied himself as to tenancy yields. He accepted

the difference in value would depend critically on whether or not there was a ransom strip.

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Andrew Carrie and the Carrie Report

[17] Andrew Carrie, a Civil Engineer who had been employed in the highways

department of the former Lothian Regional Council (“LRC”) from 1978 to 1989, was led to

speak to his report (“the Carrie Report”). He spoke to his investigations and his response to

three questions. At the outset of his evidence, objection was taken to Mr Carrie’s responses

to questions 2 and 3 of the Carrie Report as well as to his conclusion (at paragraph 1.10)

(“the Carrie objection”). In particular, Mr Carrie expressed his opinion on whether any

retaining function was “the main or primary function” of the 1912 Wall (“question 2”), and

on whether “the presence of some element of retaining function of a wall bounding a public

road or footway cause a Roads Authority to include such a wall on their Register of Public

Streets” (“question 3”)). These questions proceeded on the hypothesis that the 1912 Wall

had a retaining function. His conclusion (at paragraph 1.10) was that the 1912 Wall “was

never intended to be part of the public road and ought not to be considered as such”. No

objection was taken to his answer to the question of whether the 1912 Wall had any retaining

function (“question 4”). On that matter he concluded that the 1912 Wall did perform some

retaining function, namely of retaining the road, given the differences in level.

[18] Mr Carrie was asked about the entries on the front and reverse of a card from LRC’s

mention either its width or the 1912 Wall). Under the heading “notes” on the reverse of the

card, the following entry appeared: “Wall at Edinburgh Academy playing field maintained

by Corporation (see Minute of Agreement 1912)”. It was his recollection that the card was

from a card index system and that entries on the front of the card were for public knowledge

and the reverse were notes for the LRC’s internal use. It was his understanding that if a wall

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were adopted this was shown on the front of the card but if shown on the reverse this was

not necessarily the case.

[19] In cross-examination, he confirmed that the draft diagram (described in the Opinion,

at para [16]) appended to his report was produced by Mr Lowe, as was some information he

recorded about the footway prior to construction of the 1912 Wall and about the location of

the 1912 Wall being to the north of the strip referred to in the 1912 Minute of Agreement. In

cross-examination he accepted, after some sparring, that if there were a difference in levels

near a road a roads authority would use a retaining structure. He was initially unwilling to

accept the proposition that such a retaining wall might be part of the road, as “no one has a

public right of passage over a wall, so it wasn’t a road”. It was twice put to him that if a

roads authority took a strip of land and erected a wall which had a retaining function, it

would be consistent with the roads authority protecting the public. However, Mr Carrie

refused to consider or respond to the proposition. The first time the question was put, he

countered by asking what was meant by “took a piece of land” and the second time he

simply stated that he would expect the road would be adopted. In response to other

questions in cross examination, he ultimately conceded that a roads authority could erect a

wall as part of a road. He also accepted that a retaining wall could be integral to a road, for

example, to prevent the road from collapse.

The developers’ witnesses to fact

[20] In addition to their expert, Bryan Laird, whose evidence I consider in Appendix A to

this Opinion, the developers led James Young and Gavin Melville. The witness statements

of two other witnesses, David Newland and Gillian Smith were agreed as their evidence and

chief and they were not called.

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1) James Young: Mr Young, a retired civil and structural engineer, undertook site

and ground investigations and produced several reports, including the 2012

Condition Report and a structural condition report in 2014 (“the 2014 Structural

Report”). In relation to the function of the wall, in his view the 1912 Wall formed

a retaining function. This was because the ground level on the playing side was

about 3 feet lower (ie the wall on that side was 9 feet tall) than the pavement side

(where the wall was about 6 feet high). He also referred to the diagrams in

the 2012 Condition Report showing the difference in ground levels on either side

the 2012 Wall.

2) Gavin Melville: Mr Melville, a Senior Quantity Surveyor or with a construction

company, and who has been involved in the development since late 2016, spoke

to the value of the pile of stones which had formerly comprised the 1912 Wall.

He estimated that the value of the reusable stone was between £3,000 and £4,000.

The cost of removing them from site would be about £2,000.

3) David Newlands: Mr Newlands, a retired chartered accountant, is the chairman

of the trustees of the second defenders (a charitable organisation). His statement

covered the objectives of the development.

4) Gillian Smith: Ms Smith, a project manager for the company that manages the

development on behalf of the developers, spoke to her involvement in the

development from 2010 onwards, and to the 2012 Condition Report, the partial

collapse of the 2012 Wall in late 2014 and the photos she took at that time.

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The Council’s witnesses to fact

[21] The Council led no witnesses at proof. The statement of Neil Macfarlane was agreed

as his evidence in chief. Mr Macfarlane, a consulting roads and transport engineer, was

formerly employed by the Council as a roads manager. In that capacity, he was aware by

April 2014 that the 1912 Wall was coming to the end of its useful life, but that a significant

sum would be required to rebuild it.

Discussion

Credibility and reliability

[22] No real issue of credibility or reliability was raised in respect of these witnesses to

fact, perhaps because so little of their evidence was relevant to the factual and legal issues.

Where I have not accepted a witness’ evidence on a substantive matter, I have explained this

in the Opinion.

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APPENDIX C to OPINION

Evidence led at the proof

[1] Parties produced full witness statements and (in the case of experts) reports and

which, in accordance with practice in the commercial court, were adopted as the evidence in

chief of the witness. (All witnesses adopted their witness statements or reports, without

qualification.) The evidence at the proof was focused overwhelmingly on the issue of

determining the location of the now-demolished 1912 Wall, as this formed one of the central

issues on the question of ownership. This was addressed in detail in the form of the expert

evidence of the pursuer’s and developers’ respective expert witnesses and their several

reports. To a lesser extent, there was some evidence about the function of the 1912 Wall as a

retaining wall (which was relevant to the roads adoption issue) and about the use of the

road and pavement (which was potentially relevant to the public rights of way issues). I

have had regard to the witness statements and reports, as well as my notes of the

examination and re-examination of the witnesses. In light of my conclusions above, I need

not consider this in the body of this Opinion. Out of deference to parties’ efforts at the proof

led, I note the expert evidence about the location of the 1912 Wall in Appendix A of this

Opinion. The evidence of the other witnesses (12 witnesses to fact and two other experts) is

summarised in Appendix B to this Opinion. To the extent that it is necessary to refer to

matters recorded in the Appendices, the Appendix and paragraph number is given

(eg A[1]).

Discussion of McCreadie’s evidence in light of the 1912 Minute of Agreement

[2] Even if the 1912 Wall did not function as a boundary, the finding that the 1912 Wall

was included within the 1912 Strip undermines a critical assumption of the pursuer’s expert.

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While each expert could apply modern technology to achieve a degree of precision for part

of his calculation, Mr McCreadie’s geo-referenced transfer of the 1895 Wall onto his TSD and

Mr Laird’s mapping of the 1912 Wall onto the Overlay, each expert nonetheless had to make

a number of assumptions. Mr McCreadie proceeded on the basis that the calculations he

undertook were from the south faces of each of the old estate wall and the 1912 Wall,

ie because it was assumed that the 1912 Strip included the old estate wall. However, for the

reason set out above this assumption is incorrect. Accordingly, this calls into question the

figures recorded in the tables at paragraphs 6.2 and 6.3 of MR1, not least because the widths

of the walls differ. If one excluded the old estate wall (ie by starting from the north face),

but now included the 1912 Wall, then an adjustment is required, and it would be likely to be

a deduction of c 6 inches from each measurement (being the difference between the width of

the old estate wall (of 1 foot 8 inches, which is deducted) and the width of the old estate wall

(of 1 foot 2 inches, which is added back)). The effect is that a number of the figures are

reduced to circa 6 feet, especially at the either end of the 1912 Wall (and for 20 or so metres

from the ends).

[3] The second assumption underpinning Mr McCreadie’s methodology concerns the

assumption that the precise contours of the irregular old estate wall were relevant at all.

(For the reasons provided above, the finding that the 1912 Wall functioned as boundary

supersedes any reliance on precise measurements to try to prove that some part of the

1912 Wall may have been erected more than 6 feet to the north of the old estate wall.) In my

view, it is improbable that the burgh engineer would have felt it necessary to take a

measure of 49 feet from the base point at multiple intervals over the whole length of the old

estate wall (as Mr McCreadie has done with the aid of laser and computer technology).

Rather, the correct premise is that in 1912 the EA Club and Grange Trustees were not

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concerned with the precise amount of the total land given up, ie on the hypothesis that the

old estate wall was part of the trust’s land, but that their principal concern (as expressed in

the missives and contemporaneous documentation) was that not more than 6 feet of playing

grounds were to be lost. On this, pragmatic, approach, the Grange Trustees and EA Club

were not concerned about the old estate wall, but that the effect of the move of a boundary

wall to the north did not impinge more than 6 feet. On that understanding, the natural

starting point would be the north face of the old estate wall. If one used Mr McCreadie’s

measurements (without his alignment adjustment), the total ground lost to the granters

(ie the width of the narrower 1912 Wall together with the unbuilt-on part of the 1912 Strip to

be used for road widening) would have been between 6 feet and 7 feet 3 inches. More to the

point, at either end, where there would be obvious physical structures to cross-check the

width of the land taken, the distance was exactly 6 feet. Indeed, for the next several 10 metre

intervals, that distance of 6 feet is maintained (subject to a minor deviation of 2 inches at

20 yards). In other words, it sufficed for the purposes of the 1912 Minute of Agreement that

the measure of 49 feet was taken at each end of the old estate wall. I have already

commented on the other points where the known points of the 1912 Wall (when extant)

matched this figure of 49 feet. Given the straight line of the proposed 1912 Wall depicted in

the 1912 Minute of Agreement Plan, it is likely that if the burgh engineer measured 6 feet

north of each of those end points, and then proceeded to draw a straight line between those

two points. The function of the 1912 Wall as a boundary wall did not require any greater

degree of exactitude. For completeness, I note that the depiction of the 1912 Wall on 1914 OS

Map appears to support this.

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Was the 1912 Minute of Agreement a conveyance?

Preliminary observations on statutory powers available to the Corporation

[4] As part of the context in which the 1912 Minute of Agreement falls to be construed, it

is helpful to understand the suite of statutory powers and duties applicable to the

Corporation as the body responsible for the roads (“the roads authority”). I did not

understand it to be disputed that, if the Corporation had wished to acquire ownership of the

1912 Strip for road purposes, it had powers to do so. In terms of the Land Clauses

Consolidation Act 1845 (“the 1845 Act”), and any “special Act” (as defined in the 1845 Act),

public bodies could use compulsory powers to acquire land for specified public purposes.

That form of acquisition contemplated acquisition of ownership of the land coupled with

compensation for the owner whose land had been compulsorily acquired. The 1845 Act also

provided for acquisition by agreement which, again, took the form of permanent transfer of

rights of ownership of the land so acquired. In addition, the Corporation had the powers

conferred by section 136 of the Edinburgh Municipal and Police Act 1879 (“the 1879 Act”),

which provided: “The Magistrates and Council may acquire by agreement lands and

heritages for the purpose of widening, enlarging, or otherwise improving any of the

streets…”. In relation to walls or fences adjacent to roads, section 94 of the Turnpike Roads

(Scotland) Act 1831 imposed a duty on roads trustees to erect sufficient walls or other means

to secure dangerous parts of the road (the trustees’ powers and responsibilities were

transferred to the Corporation by section 94 of the Roads and Bridges (Scotland) Act 1878)

and further, section 32 of the Edinburgh Municipal & Police (Amendment) Act 1891 vested

in the Corporation pavements which it maintained. While the 1912 Minute of Agreement

did not specifically refer to the statutory power the Corporation exercised in undertaking

the road-widening scheme, this was patently within the scope of section 136 of the 1879 Act.

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That acquisition of ownership remained the norm into the 1970s is at least implicit in

section 16 of the Roads (Scotland) Act 1970, which provided for the vesting of the solum of

stopped up roads in the adjoining proprietors (ie divesting the roads authorities of

ownership). The 1967 Act used “vesting” in this sense, ie of the transfer of ownership;

hence the necessity of introducing a different statutory meaning for that word in the Roads

(Scotland) Act 1984 (ie roads entered into the public lists of roads “vested” in the roads

authorities but “such vesting shall not confer on the authority any heritable right in relation

to the road”: section 1(9)). Accordingly, in 1912 the Corporation had available a number of

statutory powers to achieve road-widening purposes and, where additional land was

required, typically this involved acquisition of the ownership of the solum of that land.

The Council’s position: the 1912 Minute of Agreement was effective as a disposition

[5] The Council contended that the 1912 Minute of Agreement was a valid conveyance

of the 1912 Strip in favour of the Corporation, as it intended to create permanent rights that

existed “in all time coming”. On this hypothesis, the developers contend that the Grange

Trustees did not have title to convey the 1912 Wall (it having been carried with the

1912 Minute of Agreement), and which was consistent with the fact that the 1979 Disposition

in favour of the EA Club also did not include the 1912 Wall.

[6] The Council relied on the following features of the 1912 Minute of Agreement in

support of its submission that it was intended to convey, and did convey, ownership of the

1912 Strip:

1) The 1912 Minute of Agreement contained a full conveyancing description of the

subjects to be conveyed. This would not have been required, if, as the pursuer

contended, the 1912 Minute of Agreement simply created personal rights.

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2) A deed conveying heritable property did not require using the word “dispone”:

section 27 of Conveyancing (Scotland) Act 1874 (“the 1874 Act”) and

paragraph 11-12 of Gretton and Reid, Conveyancing (5th edition) (“Gretton and

Reid”). In that text, it was observed that

“the common-law rule requiring the use of the word ‘dispone’ has long

since been abrogated, and all that is now needed is some term that makes the

intention plain. But in practice the word ‘dispone’ continues to be used.”;

3) Other clauses contained in a disposition in conventional form, such as the date of

entry and warrandice, would have been implied into the 1912 Minute of

Agreement: See section 28 of the 1874 Act and Gretton and Reid, at

paragraph 20-09;

4) It was significant that the 1912 Minute of Agreement was recorded in the GRS, as

this demonstrated that the 1912 Minute of Agreement was understood to have an

effect on real rights. Although repealed in November 2004, section 15 of the

Titles to Land Consolidation (Scotland) Act 1868 (which was in force in 1912),

made it sufficient for the grantee to record the conveyance itself in the

appropriate Register of Sasines instead of expeding and recording an

instrument of sasine;

5) The 1912 Minute of Agreement was stamped in accordance with the stamp duty

certificate included in the last Clause of the 1912 Minute of Agreement, which

was in terms appropriate at the time for “Conveyance or Transfer of any kind not

herein-before described ”and for which the rate was, 10s”.

6) Furthermore, the 1912 Minute of Agreement contained the certification in

Clause Fifth (quoted above). Such a certificate was required in terms of

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section 73 of the Finance Act 1910 and applied only in relation to conveyances

and transfers. For this reason, the pursuer was incorrect to rely on the 10s duty

applicable to “Deed of any kind whatsoever, not described in the schedule”.

[7] The Council also relied on the following matters extrinsic to the 1912 Minute of

Agreement:

1) The 1979 Disposition granted by the Grange Trustees to the EA Club did not

include the solum of the Wall. This reflected the fact that the Grange Trustees did

not have title to the 1912 Wall. Further, in terms of clause ninth of the Grange

Trustees’ Deed of Constitution, if the debt on the EA Land was paid off, the

Grange Trustees had the power to dispone the EA Land to the EA Club or retain

it. Properly construed, the Grange Trustees did not have the power to retain

some of the EA Club’s ground (on this hypothesis, the 1912 Wall), and dispone

the rest of it.

2) The capacity of the Grange Trustees to dispose of land was, at this remove,

irrelevant. None of the parties involved in or affected by the transaction took any

steps to set it aside. Any such right would now be lost through acquiescence.

In any event, the relevant beneficiary of the Grange Trust, being the EA Club,

signed the 1912 Minute of Agreement. That was effective consent in terms of

section 3 of the Trusts (Scotland) Act 1867 (“the 1867 Act”). The EA Club’s

consent to the 1912 Minute of Agreement would have barred it from seeking to

set aside the transaction.

3) The language used in the 1912 Minute of Agreement should be read in light of

the discussion that took place between the Grange Trustees at the time, as

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recorded in the minute of the meeting that took place on 30 November 1911

(see para [31(5)].

4) To the extent that the pursuer relied on the Bond and Disposition in Security

granted by the Grange Trustees in favour of the Edinburgh Life Assurance

Company in 1911 (“the 1911 BDS”), it should be noted that such a security did

not divest the proprietor of ownership, notwithstanding the use of dispositive

language: Campbell v Bertram (1865) 4 M 23 at pp27-28. A proprietor could still

dispone or grant real rights notwithstanding the existence of such a security

(albeit such dispositions might be voidable at the instance of the creditor): see

Edinburgh Entertainments v Stevenson (1926) SC 363 at p375; Craigie’s

Conveyancing, Heritable Rights (1899), p947. The absence of any “recognition” of

the 1911 Security in the 1912 Minute of Agreement was therefore irrelevant.

[8] In submissions, senior counsel for the Council, Mr Barne QC, submitted that any

issue as to the vires of the Grange Trustees to dispose of land was, at a remove of more

than a century, irrelevant. (The other parties acquiesced in that submission.) In any event,

the relevant beneficiary of the trust, being the EA Club, signed the 1912 Minute of

Agreement, which constituted effective consent in terms of section 3 of the 1867 Act. While

the question of the vires of the Grange Trustees in entering the 1912 Minute of Agreement

was not contested at the proof, in the sense of comprising one of the issues the Court

required to resolve, it was referred to as a factor relevant to the question of whether the

1912 Minute of Agreement was a conveyance.

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The pursuer’s position: The 1912 Minute of Agreement was not a conveyance

[9] The pursuer’s position was that the 1912 Minute of Agreement was not a conveyance

of the 1912 Strip in favour of the Corporation and, accordingly, could not be a foundation

writ for prescriptive possession. The pursuer relied on the following factors:

1) The 1912 Minute of Agreement did not contain a dispositive clause. While it was

not necessary to use the word “dispone”, a valid conveyance still required “other

word or words importing conveyance or transference, or present intention to

convey or transfer” (section 27 of the 1874 Act). Some form of words was needed

denoting that something was passed from a person or place to another. For there

to be a “transfer” there must be an indication that ownership of the property

passed from one party to another. Neither in the Recitals nor in any of the

Clauses to the 1912 Minute of Agreement was there any intention that the

Council should become owners of the 1912 Strip. There was no reference to sale

or purchase; instead there was only reference to an “arrangement”. Instead of

words such as “convey”, “transfer” or “dispone” or the many synonyms that are

available, all that is said was that the Trustees will “give up” the ground in

question. At best, this was an undertaking to surrender use of the property

rather than to effect a transfer of ownership.

2) While the 1874 Act had changed the requirements for what was a conveyance

generally, there were additional requirements for conveyances for land acquired

by the Corporation. The 1845 Act was incorporated into the various Local Acts

regulating the Council’s predecessors, namely in the Edinburgh Municipal Police

Act 1879 (section 3) and in the Edinburgh Corporation Act 1906 (section 6). The

significance of this was that this provided power for the ‘undertaking’.

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Section 80 of the 1845 Act specified that conveyances of land purchased under

the Act were to be as near as possible in the form of the conveyance set out in

Schedule A. The 1912 Minute of Agreement was not in the form of Schedule A.

This was another factor indicating that the parties did not intend that it be a

conveyance.

[10] The pursuer argued that other factors, extrinsic to the terms of the Minute, were

relevant:

1) The Grange Trustees granted the 1911 BDS. In terms of Clause Ninth of the

1882 Trust Deed, the Grange Trustees had power to dispone or make over the

grounds to the clubs only if the whole debts on the ground had been paid off.

However, given that the discharges were not until 1925, the debts were still

outstanding in 1912.

2) Even if the 1882 Deed had not contained that provision, the Grange Trustees

would have had no power to dispone the property. Section 3 of the 1867 Act,

authorised sale of the trust estate or part of it when the Court has, on an

application to it by petition, granted authority or when all the beneficiaries

consent. There was nothing to indicate that there was any such petition or any

such consent. Without either, a disposition would be ultra vires the Trustees.

3) That there was, in the circumstances, no power to dispone and that there could

be no conveyance was indicated by the Minutes of 30 November 1911 of the

Grange Trustees (see para [31(5)], above) and the Minutes of the Streets and

Buildings Committee of the City Councillors of 2 February 1912 (see para [31(6)]

where the proposal in relation to the ground proceeded on the basis that the City

Councillors, “accept the Trustees’ title and do not ask for a conveyance”. These

Page 72 ⇓

provided clear evidence of the purpose or objective of the parties to the

transaction as referred to in Chartbrook. This is quite different from looking at

evidence of negotiations.

4) The 1912 Minute of Agreement was not bipartite but tripartite. The tenants of the

land in question were included as parties to the 1912 Minute of Agreement. Had

the 1912 Minute of Agreement truly been a disposition, it would have been

bipartite with any obligations to be imposed on the tenants, to be done by the

disponees as owners.

[11] The pursuer submitted that each of the foregoing factors supported the view,

apparent from the terms of the 1912 Minute of Agreement, that it was not intended to be

a conveyance. This was not changed by the fact that it was recorded in the Register of

Sasines. Although at the time a disposition had to be so recorded to take effect, it did not

follow that everything that was recorded was a conveyance. Registration in the GRS was

not limited in practice to dispositions. Deeds of Conditions were the paradigm example of

documents recorded in the GRS which did not have dispositive effect. And Deeds of

Conditions often contain provisions that, as a matter of law, can have no effect as real rights.

Accordingly, on no view can the fact that the Minute of Agreement was recorded supply the

want of a term that meets the requirements of the 1874 Act and the Land Clauses Acts referred

to above. As such it should not be used to determine what the parties meant by the

language they used at the time the deed of contract was signed (Chartbrook and James Miller

& Partners Ltd v Whitworth Street Estates (Manchester) Ltd [1970] AC 583). If matters after the

grant were to be considered, it was necessary to note that in the conveyance of Grange Trust

lands completed and recorded in 1912 after the Minute, there is no exception in relation to

the 6-foot strip. Had there been a view that the 1912 Strip had been conveyed from the

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Grange Trustees to the Corporation, it would have been necessary to except this to avoid

the conclusion that the granters were seeking to dispone property that they no longer owned.

Indeed, because the 6-foot strip was not carved-out, the 1912 Minute of Agreement was a

foundation writ for the purposes of positive prescription at the instance of the Pursuer’s

predecessors in title.

[12] The absence of a dispositive clause was also fatal to the argument that the Minute

can be the founding writ for the purposes of prescription. Even apart from the fact that, as

the pursuer argued, the land to which it related did not include the 1912 Wall, while there

may have been possession of the land to the south of the wall on which a pavement came

to be constructed, there has been no possession of the wall consistent with a right of

ownership. Such possession as the Council sought to found upon was not exclusively

referable to ownership since it is principally referable to the express obligation in the Minute

of Agreement.

Discussion of whether the 1912 Minute of Agreement was a conveyance

[13] In considering these submissions, I begin with the terms of the 1912 Minute of

Agreement. The most compelling factor, in my view, is the language used in the operative

clause (Clause First): this provided that the 1912 Strip was “given up in all time coming”. I

note that there is no reservation of any interest in favour of the granters (such as ownership

of the solum of the 1912 Strip). Nor was there any provision for reversion of the use of the

land (if that were the limited nature of the interest conferred) in the event the Corporation

no longer required it. Given that the 1912 Strip was required to widen a principal

thoroughfare through Stockbridge, the prospect that the Corporation would cease to need

the 1912 Strip was improbable. In that circumstance, there would be little purpose in

Page 74 ⇓

providing for reversion of use; that same circumstance would also suggest that the granters

had little to gain in reserving ownership of the solum. The statutory context, noted above, is

also relevant. The form of dealing contemplated was acquisition of ownership, not some

lesser form of grant (ie of use akin to a servitude). The pursuer argues that there are no

words of transfer to a transferee, but it is clear that the 1912 Strip was being given up to, that

is being ceded to, the Corporation and that the Corporation would thereafter take over the

1912 Strip for its road-widening purposes. Furthermore, the 1912 Strip was being given up

“in all time coming”. That language is inimical to the granters retaining any interest, much

less of any intention to retain the ownership of the solum of the 1912 Strip. At the very least,

that indicates an abandonment by the granters of any interest in future in the 1912 Strip.

The combination of this language, being effectively the abandonment of any interest, and

the ceding of the 1912 Strip to a known grantee, is sufficient of dispositive intent,

notwithstanding the word “dispone” was not used.

[14] Accordingly, I find that the language used - “given up in all time coming” -

constituted an unqualified ceding of the granters’ rights to the 1912 Strip. The granters

thereby avoided the risk that maintenance of the 1912 Wall might fall to them (qua owners of

its solum), but that matter was put beyond doubt by obliging the Corporation to assume

responsibility for its maintenance in all time coming. This also ensured that the granters

would avoid any liability that might befall frontagers of roads, eg in respect of fences, as

then recently provided for in section 68 of the Edinburgh Corporation Act 1906. (That that

was not a merely theoretical risk is demonstrated by the Minute of a sub-committee of the

Corporation’s Streets and Buildings Committee on 10 March 1911, recommending a

resolution be passed under section 68 of the 1906 Act requiring that no building be erected

within 30 feet from the centre line of Comely Bank Road, including that part immediately to

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the south of the EA Land.) The quid pro quo was the Corporation’s undertaking to construct

a substantial wall along the whole length of the 1912 Strip at its own expense and to

maintain it in all time coming, together with the erection of a taller steel screen set back

3 feet from the new 1912 Wall. The onerous character of those undertakings supports the

interpretation that the Corporation were obtaining something equally substantial in the

form of ownership (and not simply use) of the 1912 Strip.

[15] In relation to the pursuer’s observation that there were three parties to the

1912 Minute of Agreement, in my view this does not favour the pursuer. While as a

generality dispositions are bipartite, the fact that the 1912 Minute of Agreement was a

tripartite deed did not render it invalid (I did not understand the pursuer’s argument to go

that far). It is instructive to consider the purposes of the EA Club and the Grange Trustees

both being parties to it. While the EA Club occupied the land at that time (it is said in the

pleadings to have been under a lease), they were also beneficiaries of the trust of which the

Grange Trustees were the trustees. Further, that was a bare trust pending repayment of the

outstanding lending, upon which event, the Grange Trustees would be obliged to convey

the EA Land to the EA Club if asked to do so. That may explain the otherwise curious

feature that the Corporation’s approach was to the EA Club (and not to the owners), and,

further, the Grange Trustees also treated its views as subordinate to those of the EA Club

notwithstanding that, in law, the Grange Trustees held the title. If the 1912 Minute of

Agreement were solely concerned with the loss of rights of occupation over the 1912 Strip, in

these particular circumstances, this was a matter which concerned the EA Club as

beneficiaries under the trust and in which the Grange Trustees, as the trustees under a bare

trust, had no practical interest. Absent the failure of the trust purposes, the Grange Trustees

could not deal with that land as an outright owner could (ie if not impressed with trust

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purposes) and they had no expectation to be in a position to do so. In these circumstances,

they would not have required to be a party to a deed if it only resulted in a loss of rights of

occupation; that was the sole concern of the occupiers, the EA Club. If, however, the

Minute of Agreement was a permanent divestment of the ownership of the 1912 Strip, then

the granters necessarily required to be the Grange Trustees (qua owners, albeit held in trust).

Given the doubt expressed by one member of the Grange Trustee’s power to sell, it would

have been prudent for the Grange Trustees to secure the agreement of the EA Club to that

dealing, as it was the one party who would have had a locus to challenge that dealing for

any want of power or other potential breach of trust. It was expedient to do so in the same

deed, as was done here. It follows that I reject the pursuer’s submission that there was no

consent by the beneficiaries (ie the EA Club) to the Grange Trustees’ dealing affecting the

trust property (ie the EA Land) in the form of the 1912 Minute of Agreement, as required by

section 3 of the 1867 Act.

[16] Other features of the 1912 Minute of Agreement reinforce its character as a

conveyance: the inclusion of a full description (by reference to the 1912 Plan); the use of a

parts and portions clause; the certification in Clause Fifth, and its recording in the GRS. The

stamp duty of 10s was equally consistent with this falling into the ‘any other deed’ category

as into the category of a conveyance. However, in light of the certification, on balance this

support’s the Council’s position, though I regard this particular factor as carrying little

weight. While the pursuer argued that the 1912 Minute of Agreement did not conform with

the prescribed form under the 1845 Act, this is of no moment because the 1912 Minute of

Agreement did not bear to be entered into by the Corporation pursuant to that Act. It did

not need to, given the availability of specific power under the 1867 Act to acquire land by

agreement for road purposes. The absence of an express date of entry was also of little

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consequence, as there is nothing to suggest that the timing of the works affected the

granters; it was a very modest strip compared to the total area of the EA Land and the

1912 Wall was to be built to a plan already agreed and at a time convenient to the granters.

For these reasons, I find that the 1912 Minute of Agreement was a valid disposition of the

1912 Strip to the Corporation.

The vesting and listing issues

Precis of parties’ positions

The defenders’ position

[17] As I understand the defenders’ fall-back position (if the 1912 Minute of Agreement

was not a conveyance), it is to argue that the 1912 Wall was sufficiently functionally related

to the road that it fell within the powers and obligations of the roads authority; that

ownership of the 1912 Strip was vested in the Council by virtue of section 191 of the

1967 Act; and in any event the listing of Comely Bank Road and the 1912 Wall covered its

dealings with the 1912 Wall and its solum, and that (if this were needed) the grant of the

section 56 orders in 2017 effected a re-dedication of the land to which those orders applied

to relevant road purposes such as to defeat the pursuer’s claim. This last proposition was

relevant to the public rights of way issues.

The pursuer’s response to the defenders’ vesting and listing arguments

[18] The pursuer invited the court to reject these arguments. The 1912 Wall was not part

of the road. The defenders’ case based on the 1967 Act was misconceived as that provision

did not confer ownership (at most it vested a right of use of the road surface) and,

separately, that provision had no application to already-vested roads (which would have

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been the position as at 1967). The defenders’ case based on vesting in the 1984 Act is also

ill-founded as that expressly provides that its provisions shall not vest any heritable right.

Furthermore, the inclusion of the 1912 Wall in the list of public roads was for the restricted

purpose of the maintenance obligation.

Was the 1912 Wall part of the road?

[19] Before turning to the road listing and vesting issues, it is helpful to consider as a

preliminary matter the function of the 1912 Wall, insofar as that might inform consideration

of its status as part of a “road” for the purposes of the 1984 Act. I approach this question,

was the 1912 Wall part of the road?, as a mixed question of fact (did the 1912 Wall serve a

retaining or other protective function related to the adjacent foot way and road?) and law

(did that functional relationship bring the 1912 Wall within the definition of a “road” and

susceptible to the exercise of statutory powers by the Corporation and its successors?). That

part of Mr Carrie’s Report to which objection was taken (“the Carrie objection” (see

Appendix B[17] and para [88], below)) only arises after this preliminary question has been

determined.

As a matter of fact what function did the 1912 Wall serve?

[20] I begin with the factual aspect of this question. There is no doubt that from its

construction the 1912 Wall performed a retaining function for Comely Bank Road. Every

witness who was asked accepted that it did so. (This even included the pursuer’s expert,

Mr Carrie (see B[17]) and the developers’ James Young (B[20(1)].) A retaining wall was

necessary, given the 3-foot differential between the ground levels of the roadway/pavement

to the south and the playing fields to the north of the 1912 Wall. This differential existed

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from the outset, as is clear from the entries in the contemporaneous documentation

(referring to the need for a wall that was 6 feet from the roadside but 9 feet from the playing

field side); and this differential still existed 100 years later, as disclosed in the cross-sectional

drawings included in the 2012 Condition Report. In practical terms, in addition to

protecting against subsidence of the road and pavement down into the EA Land, the

1912 Wall also protected road users and pedestrians against that vertical drop.

[21] The pursuer argued that the 1912 Wall itself was essentially to protect road users

from the activities of the playing field, and not vice versa. I find this argument an artificial

one, as it ignores the obvious purpose of the taller steel fence the Grange Trustees obliged

the Corporation to construct three feet north of 1912 Wall. This submission also fails to

accommodate the evidence of the substantial differential in the ground level between the

pavement side and the playing field side of the 1912 Wall, and it fails to recognise that the

same wall might simultaneously fulfil several functions. The fact that the stone wall was

(for a time) surmounted by a metal fence or that the stone wall was 6 feet in height (from the

road side), did not detract from its essential function as a retaining wall. In any event, this

submission did not address the fact that even the lower part (ie the stone part) of the

1912 Wall retained the pavement and adjacent roadway in place. In submissions, the

Council noted the comments in a report of Gordon Dow, chartered engineer, stating that

due to the differences in level

“a level footpath to allow safe passage of pedestrians could not have been

extended….without the wall first being built below to provide a retaining

function to and to maintain the integrity of the footpath”.

This indicates that the 1912 Wall extended underneath the pavement to support it. I

therefore accept the Council’s submission that without the 1912 Wall, the pavement could

not have been extended in the way that it was.

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Did that functional relationship bring the 1912 Wall within the definition of a “road” and susceptible

to the exercise of statutory powers by the Corporation and its successors?

[22] It is also relevant in my view to note the genesis of the 1912 Wall, which followed an

approach expressly for road-widening purposes by the Corporation (which then was, as the

Council is now, the roads authority). The 1912 Wall was built at the same time as Comely

Bank Road was widened and the adjacent pavement was constructed at that time up to the

south face of the 1912 Wall. Reference was made to The Roads and Bridges (Scotland)

Act 1878, which imposed a duty on relevant roads authorities, who “…shall erect sufficient

parapet walls,…or other adequate means of security along the sides of all… embankments,

or other dangerous parts of the said roads” (emphasis added). (This provision, derived from

section 94 of the Turnpike Roads (Scotland) Act 1831, was subsequently incorporated into

the 1984 Act.) There was no suggestion that the Corporation did not have these powers

available to it in 1912 or that it was acting ultra vires these powers. Accordingly, it was

within the powers of the Corporation as the roads authority to construct a wall for the

purpose of protecting road users and users of the adjacent footway, from the risks that that

drop posed. The availability of these powers was not challenged.

[23] The Council referred to Johnstone v The Magistrates of Glasgow (1885) 12 R 596

(“Johnstone”) for the proposition that a wall can form part of the road (per Lord Shand at 602)

and to the possibility, acknowledged by Lord Boyd in earlier litigation concerning the

1912 Wall, that if the 1912 Wall did have retaining and public safety functions, then it could

be considered part of the “road” within the meaning of the 1984 Act. While Lord Boyd

could not determine that matter in the absence of evidence, I was invited to do so on the

evidence that I have heard. While the pursuer argued that Johnstone could be distinguished

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as that concerned embankments, not a wall, the correct analysis is whether the contested

structure (embankment, wall or parapet) was necessary in the sense of functionally integral

to the integrity of the road (which includes an associated footway or pavement). On the

evidence, I am persuaded that the 1912 Wall had these functions.

[24] The Council argued that the contention that the 1912 Wall was part of the road is

consistent with the obligation the Corporation assumed in Clause Third to maintain the

1912 Wall “in all time coming”, as it was otherwise unclear on what basis or in the exercise

of what power the roads authority could have undertaken an obligation to expend public

funds maintaining a private wall that did not form part of the road. I would not have

regarded this factor on its own to be determinative, but I accept it has a persuasive force that

supports the conclusion that I have come to on the other evidence. It follows that I do not

accept the submission that because this obligation was founded on an agreement, this

displaced this being the exercise of a public function. The maintenance by the Council (and

its statutory predecessors) of the 1912 Wall was consistent with their statutory functions as

the roads authority.

[25] I therefore find that the Corporation built the 1912 Wall as part of the road-widening

scheme undertaken in the exercise of its powers as the authority responsible for the roads;

that having regard to its retaining function, the 1912 Wall was integral to those works; and

that the 1912 Wall may therefore be considered part of the “road” for the purposes of the

1984 Act.

Vesting under the 1967 Act

[26] Notwithstanding the ownership arguments based on the 1912 Minute of Agreement,

separately the defenders argued that ownership of the 1912 Wall (as part of the road) vested

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in the Council in terms of the 1967 Act. While all 10 pages of the definitions in section 3

thereof were highlighted for the Court, I was not asked to note any particular definition.

Similarly, other provisions were highlighted, including sections 201 and 202 (anent the

prevention of dangers to street users), section 211 (construction of footways of public streets)

and sections 506 and 507 (definitions for that part of the 1967 Act dealing with acquisitions

and disposal and the acquisition of land by agreement). However, the only provisions

referred to in submissions were sections 190 to 192 falling with section A (“Vesting, etc for

Part XVIII”) in Part XVIII. Sections 190 and 191 provide as follows:

“190 Subject to the provisions of this Part of the Order, all streets, carriageways or

footways, or parts thereof, which were vested in the Corporation at the

commencement of this Order shall continue to be vested in them for the purposes of

this Part of the Order.

191 Subject to the provisions of this Order, all land acquired by or ceded to the

Corporation for the purposes of constructing, widening or improving public streets

shall vest in them without the necessity of any disposition or other conveyance of

such land in their favour.”

I need not quote section 192, which simply concerns the maintenance of a list of public

streets.

[27] The defenders’ argument was that on a literal reading of section 191, Comely Bank

Road and the 1912 Wall which was integral to it vested in it “without the necessity of any

disposition or conveyance” and, in this context, vesting meant transfer of ownership to the

roads authority and, that in this context “vesting” had a different meaning than that

deployed in the 1984 Act.

[28] It is in my view correct that the 1967 Act used “vesting” in the sense of transferring

ownership of the solum to the grantee roads authority. This much is implicit from the

dispensation from having to use the usual kind of deed to achieve that effect. (And it is

recognised in a conveyancing context that such a deed granted under such a provision can

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act as a mid-couple, ie an unrecorded deed of conveyance.) Thus far, I accept the Council’s

argument. However, I do not accept that section 191 has any effect in respect of a subsisting

road at the date of entry into force of the 1984 Act.

[29] While other sections were highlighted as noted, I have not had the benefit of

submissions on these. With that caveat, it respectfully seems to me that while

section 507(1)(a) of the 1967 Act enables the Corporation to acquire land inter alia by

agreement for the purposes of any of their functions under the 1967 Act, that relates to the

exercise of the powers under or for the purposes of the 1967 Act; it is not directed to land

already within the ownership or control of the Corporation. (Subsection 507(1)(b) has no

application in this case because, read short, it provides for compulsory acquisition and it is

those parts of the Land Clauses Acts relating to compulsory acquisition which are

incorporated by reference into the 1967 Act by subsection 507(2), and those provisions in the

Land Clauses Acts concerning acquisition by agreement are excluded: subsection 507(2)(a).)

[30] To the extent that the Council relies on section 191 of the 1967 Act as vesting

ownership in land previously held (but not owned) by the Council as roads authority, I find

this argument unsound in law. The apparent width of the final part of section 191

“…all land acquired by or ceded to the Corporation for the purposes of constructing,

widening or improving public streets shall vest in them without the necessity of any

disposition or other conveyance of such land in their favour”

is qualified by the opening phrase “Subject to the provisions of this Order”. The words the

Council relies on do not effect a wholesale vesting of all land held (but on the defenders’

premise not owned) immediately prior to the 1967 Act. That would be a remarkable

outcome and for which, on the canons of statutory interpretation, clear words would be

required. However, the defenders’ reading disregards the place of section 191 in the context

of the other provisions of this part of the Order.

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[31] Part XVIII of the 1967 Order, which is headed “Streets”, is concerned with both

existing and new streets. Part XVIII B, for example, governs the construction and naming of

new streets. The opening provisions, in Part XVIII A, concern “vesting, etc”, and it

understandably must distinguish between existing and new streets. It is in that context that

section 191 falls to be construed. Section 190 is the provision which deals with streets that

“were vested in the Corporation at the commencement of the Order”. This provision does

no more than preserve the status quo in respect of already-vested streets, and which would

include Comely Bank Road and the 1912 Wall. By contrast, section 191 relates to land

acquired by the Corporation for the purposes of the 1967 Act; that is, for new streets.

Accordingly, in respect of land that is acquired under the 1967 Act inter alia to form a new

street, this is vested without the necessity of any disposition or conveyance. In terms,

section 191 does not extend to existing streets (or, more strictly, the land on which existing

streets are located) already vested in the Corporation. I therefore hold that the Council did

not acquire any right of ownership to the solum of the 1912 Wall by virtue of section 191 of

the 1967 Act.

The listing issue/ the 1984 Act

The defenders’ position

[32] The defenders also advanced a discrete argument under reference to the 1984 Act. I

did not understand the defenders to argue that any right of ownership in the solum of the

1912 Wall was acquired by virtue of the 1984 Act. In any event, section 1(9) precludes this,

as it expressly provides that

“…every road which is entered in the list of public roads kept by a local roads

authority shall vest in the local authority for the purpose of their functions as roads

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authority: but such vesting shall not confer on an authority any heritable right in

relation to a road”.

Rather, the submissions under the listing issue are to support the submission about public

rights of way on the basis that the 1912 Wall enjoyed the status of a “road” under the

1984 Act. My determination above, that the 1912 Wall was functionally integral to the

road-widening works in 1912, largely supersedes this issue.

The pursuer’s position

[33] The pursuer’s position is that the definition of “road” in the 1984 Act makes no

reference to walls at the sides of road. Nor was this surprising, as the essence of a road was

that there was a public right of passage over it - which was nonsensical in respect of walls.

While a verge was expressly included in the definition of a road, a wall was not a verge. As

a road involves a right of passage, then a road will necessarily exclude a wall. That was the

import of Hamilton v Nairn at paragraphs 22, 24, 25 and 28. While obstructions were

permissible on a verge (per David Runciman & Sons v Scottish Borders Council) that did not

encompass a wall which rendered passage impossible on its solum. The case of Johnston v

Magistrates of Glasgow (1885) 12 R 596 was distinguishable, as the wall in that case was

structurally part of the road, in contrast to “a fence properly so called”. Having regard to

the 1912 Minute of Agreement, the 1912 Wall functioned as a “fence” in this sense.

Reference was also made to the requirement in the 1912 Minute of Agreement for the wall to

be surmounted by a higher metal fence. That structure protected against stray balls,

whereas the stone wall provided privacy. As for the listing of the 1912 Wall, properly

construed, the last two sentences addressed obligations of maintenance.

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Discussion

[34] The 1984 Act provided for the listing of public roads. The consequence of listing is to

impose on the roads authority an obligation to manage and maintain the roads, and wide

powers are conferred on it for this purpose: see end of section 1(1). Subsection 1(2) makes

provision for the inclusion in that list of all public roads which had previously been listed.

Accordingly, in my view, section 1 is neutral on the question of the ownership of the solum.

It neither confers ownership on the roads authority in respect of new roads, nor divests

roads authorities of ownership of those roads that were owned by the Council prior to the

1984 Act.

[35] I would not have regarded the fact that the 1912 Wall is included in the listing of this

part of Comely Bank Road as determinative of whether it was a “road”. However, the plain

fact is that, on the available evidence, the 1912 Wall has been included for decades in the list

of roads kept by the roads authorities in exercise of their powers. Those entries have not

been challenged, reduced or corrected. There is no evidence to suggest that in the exercise

of its statutory powers or in the expenditure of public funds the Council or the Corporation

acted ultra vires. Other relevant factors are that the 1912 Wall was part of the overall

acquisition of the 1912 Strip; that this was sought by the body then responsible for roads

(ie the Corporation) specifically for road-widening purposes and that the 1912 Wall has been

included historically in the roads lists of the old Lothian Regional Council and pre-dating

the 1984 Act. In addition, consistent with its responsibilities as the roads authority, the

Corporation accepted the maintenance obligation in Clause Third of the 1912 Minute of

Agreement. (The fact that that obligation is founded on that agreement does not displace

the statutory duty on the roads authority for its maintenance, if it formed part of the road.)

The pursuer sought to construe the listing quoad the 1912 Wall as confined solely to Comely

Page 87 ⇓

Bank Road and not the wall (because of the reference to maintenance). I am not persuaded

that applying the finer tools of textual analysis to entries in lists of roads is a fruitful

exercise, compiled as they are by non-legal staff in local authorities and not in the

expectation the punctuation used will be closely scrutinised. In light of these factors just

noted, and in light of my earlier findings of fact that the 1912 Wall was functionally integral

to the road, the 1912 Wall was properly included as part of the road in the listing of this

stretch of Comely Bank Road. The 1912 Wall was dedicated to road purposes, consistent

with that listing. It follows that I do not accept the pursuer’s submission to the contrary.

The Carrie objection

[36] In light of the foregoing, I can deal briefly with the objection to parts of Mr Carrie’s

evidence (see B[17] to [19]). (In any event, the pursuer did not refer to or appear to found on

Mr Carrie’s evidence in submissions.) The basis of the objection was a Kennedy v Cordia

objection, to the effect that there was no relevant expertise anent road listings. I accept that

submission as well-founded and exclude this evidence. Even absent that objection, I would

not have accepted the evidence of Mr Carrie for three reasons: first, in evidence he did not

present the requisite independence of approach which is the hallmark of an expert. When

asked to comment on a hypothesis contrary to his opinion, as experts are often asked in

evidence to do, he repeatedly cavilled (see B[19]). He included in his Report, seemingly

unquestioningly, the draft diagram of Mr Lowe without establishing whether it had any

foundation in fact. More fundamentally, his assertion that the 1912 Wall should never have

been listed was made without regard to some evidence available in the documentation

inconsistent with this (which may not have been drawn to his attention). His opinion did

not have a well-reasoned or cogent evidential basis. In any event, I would have preferred

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the unchallenged evidence that the 1912 Wall served a retaining function, to Mr Carrie’s

unsupported assertion that it was inappropriately included as part of the listing for Comely

Bank Road.

Rights of passage/access rights

[37] Given that I have determined that there was no Disputed Strip and that the

1912 Minute of Agreement was a conveyance of the 1912 Strip, the issues under this heading

do not arise.

[38] On the hypotheses (1) that the Disputed Strip existed; (2) that it was situated in the

location the pursuer contended for; (3) that the Council did not acquire ownership of the

1912 Strip or, at least, not ownership of the solum of the 1912 Wall, nonetheless, given the

findings I have made as to the functions of the 1912 Wall and its status as a “road” for the

purposes of the 1984 Act, I would have found in that by reason of that dedication to road

purposes the public had rights of passage over the road - including the pavement and solum

of the 1912 Wall. Even if I was wrong in that conclusion, I would have held that the grant of

the section 56 orders (which were granted after the 1912 Wall had been taken down) effected

a re-dedication of that area of the pavement and the now-exposed solum of the 1912 Wall

such as to bring into existence anew rights of passage along it as part of the pavement. Had

I found against the defenders on that point, I would not have held that, independently, any

relevant right was capable of arising from the 2003 Act as, on this hypothesis, that right was

sufficiently satisfied by other parts of the extant pavement.

Page 89 ⇓

The pursuer’s title

[39] The defenders challenged the pursuer’s title, essentially on the basis that an

unregistered disposition did not transfer ownership (section 50 of the Land Registration etc

(Scotland) Act 2012 (asp 5) (the “2012 Act”) and, further, that such evidence as was led did

not demonstrate that the 2018 Disposition (including the 2018 Plan) was in a form that was

registrable in the Land Register.

[40] Reference was made to the Keeper’s guidance on “Deed plan criteria” (which may be

found on the Registers of Scotland website) (“the Keeper’s Guidance”). (The objection taken

to production of the Keeper’s Guidance was, in my view rightly, dropped in submissions.)

In the absence of expert evidence or submissions on behalf of the Keeper, which at the least

might have assisted in the application of the Keeper’s Guidance, I express only a provisional

view on this issue. For a disposition to be registrable in the GRS it required a full

conveyancing description. The equivalent to satisfy the need for identifiability in Land

Registration (assuming the deed is otherwise valid) is that the deed “so describes the plot as

to enable the Keeper to delineate its boundaries on the cadastral map”: section 25(1)(b) the

2012 Act. The Keeper’s Guidance notes that if the scale of the plan submitted is insufficient

to show the detail, a larger scale may be required to show the requisite detail. The Keeper’s

Guidance also notes that in respect of a boundary where no physical boundary exists (an

“undefined boundary”), such a boundary must be accurately fixed to existing detail by

metric measurements shown on the plan. The southern boundary of the Disputed Strip falls

into the category of an “undefined boundary”.

[41] To be registrable in the Land Register the land must be shown on a scale plan with

suitable markings that meets the Keeper’s technical specifications. The purpose is to enable

the land to be identified and plotted with sufficient precision on a cadastral map.

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Measurements may not be necessary in instances where the boundaries are otherwise shown

by reference to known physical features or is otherwise identifiable, eg by reference to

adjacent titles, and which might be capable of articulation with the requisite precision,

particularly if the overall area is given (and from which liner measures might be

extrapolated). However, that is not the case here. The 2018 Disposition plan contains no

figures of linear or area measurements; the critical southern boundary is not defined by

reference to any physical boundary. It is an “undefined boundary” for the purposes of the

Keeper’s Guidance. Furthermore, the very modest dimension of the subjects of the

2018 Disposition, on a north to south axis, creates additional uncertainty, given the margin

of error permitted for any scaled map. In my view, the dimensions and therefore location of

the subjects of the 2018 Disposition are not susceptible to being fully and accurately plotted

on a cadastral map. It respectfully seems to me, on present information and in the absence

of fuller submissions, that the subjects of the 2018 Disposition do not satisfy the technical

requirements for the cadastral map and are therefore unascertainable for the purposes of

registration in the Land Register. It is insufficient to enable the Keeper to plot the Disputed

Strip with the requisite precision on a cadastral map.

[42] As against this is the evidence elicited from some of the pursuer’s witnesses,

eg about the 30-day rule, or the practice of the Keeper to accept all deeds for registration if

not returned or rejected in a specified number of days, or about the time-lag between

presentation and registration. I did not find this evidence to be persuasive. The evidence

was elicited in cursory fashion. In relation to the 2018 Plan, all that could be said was that it

had been prepared with the assistance of a surveyor. More fundamentally, none of the

witnesses with whom this issue was canvassed was tendered as an expert. At most, what

was elicited was the view of an individual solicitor with a long association with the pursuer.

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In any event, any view that was given was simply expressed as a generality and without

reference to, or being tested against, the features of the subjects of the 2018 Disposition just

discussed.

[43] Accordingly, even if I had found in favour of the pursuer on the other issues, the

pursuer’s case would nonetheless have failed at this hurdle. In other words, I accept the

defenders’ submissions that even if the pursuer succeeded on other issues, it would not be

entitled to the first declarator sought (of ownership of the Disputed Strip). In that

circumstance, however, I would have put the matter out by order for consideration of

whether the technical deficiencies were capable of being remedied.

Jurisdiction

[44] The pursuer has no pecuniary conclusions. It concludes for declarator of ownership

of the solum of the 1912 Wall (ie Disputed Strip) (in the first conclusion), for declarator that

there are no rights of passage over it (in the second conclusion), for declarator that the

1912 Strip did not vest in the Council by virtue of listing under the 1984 Act, (the third

conclusion) and finally it concluded for permanent interdict (fourth conclusion). In relation

to meeting the privative jurisdiction, there is a bare averment (in Article 1 of

Condescendence) that the pursuer believes the subjects of the 2018 Disposition are worth

more than £100,000. Otherwise, the question of whether the pursuer’s case met the privative

jurisdiction of the court (of £100,000) was left to be resolved at the end of the proof.

[45] In submissions, I was referred to sections 39 and 93 of the Courts Reform (Scotland)

Act 2014 (“the 2014 Act”) and the relative Statutory Instrument (SI 1994/1443). The latter

provided little assistance, as the provisions referred to (rules 14B.1 to 14B.6) are directed to a

determination ab ante and not as part of the final disposal after proof (otherwise the

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references to a matter being put out by order, eg in rule 14B.6(3) would be otiose). An order

“determining rights in relation to property” - which would encompass the first and

(probably) the second declarators - falls to be valued in terms of section 39 of the 2014 Act

for the purposes of determining the value of an action. Section 93 provides for remit from

the Court of Session to the sheriff court if the Court considers “at any stage” that it is

unlikely that the value of the action meets the prescribed threshold (at present, of £100,000).

Section 93(2) provides that the court “must remit” the proceedings to an appropriate sheriff

court “unless the Court considers, on cause shown, that the proceedings should remain in

the Court of Session”.

[46] The question of the value of the pursuer’ s action was unascertainable without proof,

as any ransom value was dependent on the pursuer being the owner of, or at least having a

title preferable to that of the Council to, the Disputed Strip. On one view, upon that

determination, the obligation to remit comes into play. However, having heard this proof,

and given how patently undesirable it would be for the matter to be disposed of by

dismissal (upon upholding of the plea of no jurisdiction) with the prospect of the matter

being re-litigated in a sheriff court, I have no hesitation in finding that this enables me to

exercise the discretion in terms of section 93(2) for the action to remain in this court for the

purposes of determining the substantive issues after proof.

Title and interest

[47] I would have rejected each parties’ plea challenging the title and interest of another

party. In my view, the pursuer had sufficient title and interest to raise these proceedings

based on the 2018 Disposition and notwithstanding that that deed has not yet been recorded

in the GRS. The argument to the contrary, conflates two meanings of “title”. In this case, the

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pursuer was the holder of a delivered but unregistered disposition; he has a personal right

capable of being made real. That suffices to give him “title” and interest in the litigation

sense, even if he does not have “title” (meaning a real right of ownership) in a property law

sense.

[48] In relation to the developers’ interests, a like reasoning applies. They are not the

owners of the 1912 Strip. Nonetheless, they are exercising rights of access and occupation

adjacent to or over the Disputed Strip. The pursuer’s claim might, if well-founded, have had

a material adverse impact on the exercise of those contractual rights. Those circumstances

suffice to confer the requisite title and interest.

Prescription

[49] Determination of this issue is not determinative of the case. If, as I have found, the

pursuer’s case fails, the issue of prescription does not arise. The pursuer’s title is

unrecorded and, even if it were, the recording of the 2018 Disposition in the Land Register

no longer has the “Midas” touch. Implicit in the pursuer’s case is its reliance on its

predecessor in title, the Grange Trustees. Even if they had retained title to the Disputed

Strip (on the hypothesis it existed), the Corporation’s adverse occupation on an ambiguous

title and its possession thereof (including the 1912 Wall) was sufficient to perfect its title,

even if the 1912 Wall had been built outwith the 1912 Strip (though I have found that that

has not been established).

[50] If the Council succeeded on the basis that the 1912 Minute of Agreement was a

conveyance of the 1912 Strip in their favour, in my view, its title would undoubtedly have

been fortified by prescription. I would not have accepted the pursuer’s argument that the

acts related to maintenance of the 1912 Wall necessarily had to be excluded because the

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source of that obligation was contractual (and therefore were not counted as acts of adverse

possession), at least in circumstances where, as I have found, the Corporation became the

owner of the land by virtue of the 1912 Minute of Agreement and that Agreement was also

the source of the contractual obligation of maintenance.

[51] The heritable rights and the maintenance obligations were both derived from the

same source: the 1912 Minute of Agreement. The terms of the 1912 Plan, and in particular

the clear notations indicating that the 1912 Strip comprised the whole of the 1912 Wall (up to

its north face), defined the scope of the intended grant. Consideration of the contractual

rights of maintenance of the 1912 Wall imposed in the 1912 Minute of Agreement are

subordinate to the question of whether the 1912 Minute of Agreement was a conveyance. If

it was a conveyance constituting the Corporation as the owner, then this determined the

matter. If the Corporation required to rely on acts of possession in order to perfect the title

in respect of an ambiguous boundary in the title, I would not have accepted the argument

that acts of possession derived from a contractual right had to be excluded because, in this

case, the grant clearly included the area subject to the maintenance obligation (here, the

1912 Wall).

Public rights of passage

[52] In light of my findings that the 1912 Wall was part of the road for the purpose of the

1984 Act, it follows that from 1912 the subjects comprising the 1912 Strip (including the

1912 Wall) were dedicated to road purposes and along which there has been a public right of

passage: see Galbraith v Armour (145) Bell’s App 374 at 387 to 390 per Lord Brougham;

Magistrates of Edinburgh v North British Railway (1904) 6 Of 620 at 639 per Lord Kinnear;

Steel v Scottish Ministers 2015 SLT (Lands Tr) 81 at paragraphs 85 to 86; Hamilton v Dumfries

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and Galloway Council (no 2) 2009 SC 277 at paragraphs 37 to 39 per Lord Reed. While I have

rejected the Council’s argument that the solum of the 1912 Strip vested in it under the

1984 Act, the public have used Comely Bank Road (including its pavement and to which the

1912 Wall was functionally integral), as part of public road since 1912. In those

circumstances a public right of passage subsisted. On the particular facts, I would have been

inclined to find that a right of passage subsisted in relation to the whole of the solum of the

1912 Wall (notwithstanding a degree of obstruction of parts of it), on the basis of

Lord Drummond Young’s observation that a “right of passage is… related to the existence of

the way, rather than the area of the road itself” (David Runciman and Sons v Scottish Borders

Council 2003 SLT 1405 at paragraph 6). Further, I accept the Council’s submission that in any

event a right of passage existed in relation to the solum of the 1912 Wall consequent upon the

demolition of the 1912 Wall in late 2014 and in 2015 and by virtue of the re-dedication by the

Council in the form of its grant of consents under section 56 of the Town and Country

Planning (Scotland) Act 1997 in 2017. However, absent a right of public passage subsisting

or arising in these terms, I would have rejected the defenders’ argument that access rights on

and across the solum of the 1912 Wall subsisted under Part 1 of the Land Reform (Scotland)

Act 2003.