A589/04

 

MRS JESSIE MACKENZIE v ROBERT GRANT AND MRS MHAIRI GRANT

 

Act: Murchison

 

Alt: Ramsay

 

 

 

 

INVERNESS, 16 February, 2007

 

 

The Sheriff having resumed consideration of the cause

 

FINDS IN FACT

 

1. Prior to 16 December 2003, the pursuer was the heritable proprietor of the subjects known as 13 Damfield Road, Inverness, comprising a dwellinghouse and garden ground, being the subjects more particularly described in and in feu farm disponed by and shown delineated and coloured pink on the plan annexed and subscribed as relative to the Feu Charter by the Trustees of William Mackay with consents therein mentioned in favour of Kenneth Ross dated 21 and 24 July and recorded in the Division of the General Register of Sasines for the County of Inverness on 12 August, all 1953. A copy of the Feu Charter forms number 6/1/2 of process.
2. By Disposition dated 15 December 2003, the pursuer disponed to the defenders part of the garden ground of said subjects, which ground was described as "All and Whole that area or piece of ground forming part of Thirteen Damfield Road, Inverness lying for the purpose of registration of writs in the County of Inverness, extending to Six hundred and forty-five square metres (645 m2) or thereby and bounded as follows:- On or towards the north east along which it extends Forty-seven metres and fifty-six decimal or one hundredth parts of a metre (47.56 m) or thereby, on or towards the south east by Damfield Road along which it extends Six metres and thirty-five decimal or one hundredth parts of a metre (6.35 m) or thereby, on or towards the south west by a post and wire fence and the subjects known as and forming Thirteen Damfield Road, Inverness along which it extends Twenty-six metres and six decimal or one hundredth parts of a metre (26.06 m) or thereby, on or towards the north by the mid point of a post and wire fence along which it extends Two metres (2 m) or thereby, on or towards the south east by the subjects known as and forming Thirteen Damfield Road aforesaid along which it extends Seventeen metres and thirty-five decimal or one hundredth parts of metre (sic) (17.35 m); on or towards the south west by the subjects known as and forming Eleven A Damfield Road aforesaid along which it extends Nineteen metres (19 m) or thereby and on or towards the north west along which it extends Twenty-four metres and thirty-one decimal or one hundredth parts of a metre (24.31 m) or thereby being the subjects shown delineated in red on the plan annexed and subscribed as relative hereto". The Disposition forms number 6/1/1 of process. The plan was prepared by Mr William MacDonald on the instructions of the pursuer.
3. The Disposition was delivered and entry given to the defenders on 16 December 2003.
4. The defenders' title to the subjects disponed was registered in the Land Register of Scotland on 5 February 2004. The Land Certificate (title number INV7065) is number 6/1/3 of process. The subjects are identified as edged red on the title plan in the Land Certificate. The Land Certificate was first issued by the Keeper of the Registers of Scotland in March 2005.
5. At a subsequent date, the pursuer conveyed to her son, Alexander John Mackenzie, a one half pro indiviso share in the remaining subjects at 13 Damfield Road which had not been conveyed to the defenders.
6. Prior to the pursuer's purchase of the whole subjects, there had been erected a brieze block wall opposite the rear door of the pursuer's house at an angle roughly parallel to the rear elevation of the house. From that wall to the rear boundary of the whole subjects the garden ground was on a sloping site towards the house.
7. At some point between the sale of the subjects to the defenders and April 2004, the pursuer removed the wall and replaced it in part with a stone wall. She also built a small patio area with a stone wall surrounding it on three sides. This was positioned approximately in the middle of the position of the replacement wall and to the rear of it. A photograph of the replacement wall and the patio and walls is number 5/1/5A of process. To either side of the patio and directly behind the replacement wall, the pursuer cultivated flower beds, all as shown on said photograph.
8. On 16 April 2004, the first defender pegged out what he understood were the boundaries between the defenders' subjects and the pursuer's subjects.
9. By letter of the same date, the pursuer's solicitors wrote to the defenders' then solicitors intimating her objections to the proposed boundaries. A copy of said letter is number 5/1/1 of process. By letter dated 20 April 2004, a copy of which is number 6/1/6 of process, the defenders' then solicitors replied to the pursuer's solicitor and, inter alia, intimated that the boundaries as marked by the first defender were correct and proposed a joint submission to an independent surveyor to determine the boundaries.
10. By letter dated 27 April 2004, a copy of which is number 6/1/7 of process, the defenders' present solicitors wrote to the pursuer's solicitor and, inter alia, again called upon the pursuer to agree to a joint submission. By letter dated 4 May 2004, a copy of which is number 6/1/8 of process, the pursuer's solicitor acknowledged receipt of that letter and said that he awaited the pursuer's instructions.
11. At or about the end of June 2004, on the instructions of the first defender, Mr Ian Christie measured the boundaries between the respective subjects. In doing so he made a white mark on the wooden fence forming the south west boundary separating the respective subjects from the subjects known as 11A Damfield Road. The mark is shown in the photograph, number 5/1/5G of process. The first defender tied a blue rope to the fence at the mark and stretched the rope along its full length until it went past the north east boundary of the pursuer's subjects. In doing so, the first defender realised that on any view Mr Christie's mark was not the point from which to measure the south east boundary between the defenders' subjects and the pursuer's subjects. The rope is shown in the photograph, number 5/1/5F of process. The pursuer and the defenders were by that time not on speaking terms with each other. The defenders did not tell the pursuer that the rope was not along the purported boundary. The pursuer wrongly assumed that the defenders did think that the boundary was along the approximate position of the blue rope, as shown in said photograph.
12. By letter to the defenders' solicitors dated 6 July 2004, a copy of which is number 5/1/2 of process, the pursuer's solicitor, inter alia, intimated that the markings (sic) were inaccurate, and that there was no need for a joint submission as previously proposed.
13. On or about 9 August 2004, Mr Ross Hampton, on the defenders' instructions, drove a digger to the disputed boundary and began to dig out the soil. The defenders had instructed Mr Hampton to dig along the disputed boundary along a line which was marked by the right hand side of the second slat from the left (being the slat to the right of the slat with the white mark on it) as shown in photograph number 5/8/1H of process. Mr Hampton was not to interfere with the stone wall forming the rear of the patio. The digging was to enable the defenders to erect the brieze block wall, as shown in photograph number 5/7/1/A of process. The pursuer tried to stop Mr Hampton doing so as she thought he was digging on ground owned by her. He stopped digging. The first defender was present. Later that day, Mr Hampton resumed the digging. The pursuer again told him to stop it. He refused. The pursuer stood in front of the digger to prevent further digging. She was successful in doing so. The first defender arrived with his young dog. The dog jumped up towards the pursuer and lightly grazed her hand, arm and wrist. There was no intention on the part of the first defender to allow the dog to act in that manner.
14. On 11 August 2004, Mr Hampton resumed the digging. The first defender was present. The pursuer again stood in front of the digger to prevent the digging. In doing so, the pursuer encroached on the defenders' subjects. The first defender instructed Mr Hampton to continue. There was physical contact between the pursuer and the first defender, as a result of which the pursuer suffered light bruising to her left upper arm. The first defender did not intend to assault the pursuer. The pursuer returned to her house and telephoned the police.
15. In August 2004 the defenders erected the said brieze block wall. It is within the defenders' subjects. The pursuer has no objection thereto.
16. In or about September 2004, a meeting took place on site to measure the disputed boundaries. The pursuer attended with her expert, Mr Richard Smith. The first defender attended with Mr MacDonald. At the end of the meeting, Mr Smith suggested a compromise boundary along the north west boundary, the north boundary and the north east boundary of the pursuer's subjects. The compromise was accepted by the first defender on behalf of the defenders. The pursuer did not accept it. The pursuer did not say where in her opinion said boundaries should be.
17. At no point during the course of the dispute has the pursuer stated to the defenders, their solicitors or to Mr MacDonald where she considers the correct boundaries between the subjects to be.
18. Between July and December 2006, the defenders erected a permanent and substantial fence and garage wall on their subjects near to and along the north west boundary of the pursuer's subjects.

 

 

FINDS IN FACT AND LAW

 

1. The description in the Disposition is incapable of being plotted on the subjects thereby disponed.
2. The stone wall and patio fall within the pursuer's subjects as defined in the title plan in the Land Certificate.
3. On 9 and 11 August 2004, on the instructions of the defenders who are liable for his actings, Mr Ross Hampton encroached upon the pursuer's subjects.
4. In respect of said encroachments, the pursuer is entitled to a perpetual interdict as craved.

 

 

THEREFORE

 

Sustains the objection by the pursuer to the evidence led by the defenders in so far as same concerns discussions prior to 16 December 2003 among the pursuer, the first defender and Mr William MacDonald about agreement being reached among them on the location of the boundaries of the defenders' subjects; Repels the objection by the pursuer to the question by the defenders' solicitor to Mr William MacDonald about whether there were any issues between the pursuer and the first defender at or about the time of the defenders' purchase of the subjects; Of consent, Sustains the second plea in law for the defenders and Dismisses the action; of consent, Repels the pursuer's pleas in law and Repels the third and fourth pleas in law for the defenders; Having heard parties, Finds the defenders liable to the pursuer in the expenses of the action from its commencement until 22 June 2005; Finds the defenders liable to the pursuer in one half of the expenses of the action from 23 June 2005; Quoad ultra, finds no expenses due to or by either party; Certifies Mr Richard Smith as a skilled witness; Allows an account of expenses to be given in, and Remits same, when lodged, to the Auditor of Court to tax and to report.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Note

 

 

Introduction

 

This lamentable litigation concerns a distance of 380 millimetres, although even on that measurement there were a few minutes of debate between the parties' solicitors, before a consensus was reached, as to whether it might be 375mm or 400mm. The proof lasted 12 days and took over a year to complete.

 

It concerns the boundary between two plots of ground close to the centre of Inverness. There is a modest dwellinghouse on each plot.

 

The bare bones of the facts in the dispute are straightforward. The pursuer owned a dwellinghouse and garden ground. She decided to build a house for her son on a plot in the garden. She applied for and obtained planning permission. She chose not to proceed, but decided instead to sell the plot. The defenders purchased it. They applied for and obtained planning permission to build a house different in character to the one for which the pursuer had permission. In the course of clearing the site, the defenders used a digger to dig out ground along what they maintain is the boundary between the plot and the ground retained by the pursuer. She objected that the digging had encroached upon her ground. She obtained an interim interdict against the defenders. There has been no further encroachment. She no longer seeks a final interdict. The purpose of the proof is for the court to decide upon whom the expense of the action should fall, notwithstanding that, on any view, the expense of the proof must have been far more than the expense of the action to that point.

 

On one view it might be thought that the issue was a simple one: if the defenders did indeed encroach upon the pursuer's ground, she is entitled to the expenses; if they did not, they are entitled to the expenses. As will be seen, however, that was not the position adopted by the parties' solicitors.

A complication was that the conveyance to the defenders was a first registration under the Land Registration (Scotland) Act 1979. There was an interval of over a year from the date of the conveyance and the issue of the Land Certificate. It was during that interval that the alleged encroachment took place. The parties therefore were potentially in doubt as to the exact boundaries until, at the very least, they had sight of the Land Certificate.

 

I deal first with the law which applies to the facts, in order to decide what my approach should be to the issue before me. I then consider the facts.

 

 

What is the correct approach in law to determine the issue?

 

No citation of authority was given to vouch the proposition adopted by both parties that in order to determine who is entitled to the expenses in an action of interdict where no final interdict is sought it is necessary to lead evidence in support of the averments which led the court to grant the interim interdict. That is, however, probably the position in law (Glen v Caledonian Railway Co (1868) 6M 797, Symington & Ors v Wilsons & Union Tube Co Ltd 1904 SLT (2) 589). The reason for that is, as was said in Glen (at p799), because of the peculiar nature of the process of suspension and interdict (for present purposes there is no distinction between that and a process of interdict alone). Where an action of interdict has been raised and during the course of it the defender ceases to do the unlawful act complained of, the pursuer is still entitled to seek a final interdict at proof in order to prove that he was justified in raising the action in the first place. It would therefore have been open to the pursuer to seek a final interdict (on the assumption that I decide in her favour on the facts). But I do not see any reason why she cannot seek the expenses of the action simply because she decides not to move for a final interdict. The issue is the same. The unhappy result is that the desire to obtain an award of expenses for the initial steps in an action necessitates the expending of considerable further funds, but that is the inevitable consequence of a culpable defender not cutting his losses and conceding expenses when he ceases the unlawful act.

 

The primary position adopted by the pursuer's solicitor was that at the date of the alleged encroachment all that she had available to her to determine her boundaries were the terms of the Disposition. It did not matter that the Land Certificate when issued would be retrospective to the date of registration. The question was what was reasonable for her to do at the point of the alleged encroachment. He later went on to submit that on the evidence there was encroachment whether one relied on the Disposition or on the Land Certificate, but, he submitted, it is important at this stage to consider this concept of reasonableness. In support of his primary submission, he referred to Hay's Trustees v Young (1878) 4R 398, where Lord Ormidale (at p401) said,

"Interdict is a remedy, by decree of court, either against a wrong in course of being done, or against an apprehended violation of a party's rights, to be awarded only on evidence of the wrong, or on reasonable grounds of apprehension that such violation is intended."

Thus, the pursuer's solicitor submitted that the question was whether she had reasonable grounds of apprehension that encroachment had taken place or was taking place or that encroachment was about to take place.

 

The defenders' solicitor adopted a different position. The court has a wide discretion in determining who should be awarded the expenses of an action. The only question is whether the pursuer was justified in raising the action and seeking interim interdict. In considering that question, the court must take into account the bona fides, or otherwise, of the defenders. (Hay's Trustees v Young at p401)

 

In my opinion, the defenders' solicitor was correct to focus upon the issue as one governed by the rules which apply in the exercise of the court's discretion to award expenses. The general principles are conveniently set out in two passages quoted in Macphail, Sheriff Court Practice (3^rd edit.) para 19.07:

"An award of expenses according to our law is a matter for the exercise in each case of judicial discretion, designed to achieve substantial justice, and very rarely disturbed on appeal. I gravely doubt whether all the conditions upon which that discretion should be exercised have ever been, or ever will be, successfully imprisoned within the framework of rigid and unalterable rules, and I do not think that it would be desirable that they should be. In Maclaren on Expenses the principle is laid down upon the authority of a number of cases that 'if any party is put to expense in vindicating his rights he is entitled to recover it from the person by whom it was created, unless there is something in his own conduct that gives him the character of an improper litigant insisting on things which his title does not warrant'". (Howitt v Alexander & Sons 1948 SC 154, per Lord President Cooper at p157)

"The principle upon which the court proceeds in awarding expenses is that the cost of litigation should fall on him who has caused it. The general rule for applying this principle is that costs follow the event, the ratio being that the rights of the parties are to be taken to have been all along such as the ultimate decree declares them to be, and that whosoever has resisted the vindication of those rights whether by action or by defence, is prima facie to blame. In some cases, however, the application of the general rule would not carry out the principle, and the court has always, on cause shewn, considered whether the conduct of the successful party, either during the litigation, or in the matters giving rise to the litigation, has not either caused or contributed to bring about the law suit." (Shepherd v Elliot (1896) 23R 695 (at p696))

 

For the purposes of this discussion, the following salient facts and propositions in law emerge from the evidence:

1. The parties entered into a contract for the sale of heritable subjects which form a plot of ground;
2. The contract was contained in a Disposition. (Presumably the parties entered into missives, but no evidence was led about that and, in any event, I note that the missives, if they existed, were not continued in force by the Disposition.);
3. On delivery of the Disposition on 16 December 2003, there was created in favour of the defenders a personal right to the subjects;
4. The Disposition was presented to the Keeper for first registration in the Land Register in order that the defenders might obtain a real right to the subjects;
5. The date of registration is 5 February 2004, but the Land Certificate itself was not issued until March 2005. (No explanation was given for the apparent delay between the delivery of the Disposition and its presentation for registration);
6. Accordingly, the defenders' personal right became a real right on 5 February 2004;
7. The defenders' contractor was digging at or about the boundary between the parties' respective subjects on 9 and 11 August 2004;
8. The interim interdict was granted on 11 August 2004.

 

In my opinion the following propositions emerge from those facts:

1. The location of the disputed boundaries is determined by the Land Certificate, certainly by the time the alleged encroachment took place;
2. In the event that, as a matter of fact, the defenders' contractor encroached upon the pursuer's subjects, a right of the pursuer has been infringed;
3. Prima facie, the pursuer would therefore be entitled to seek a remedy for the infringement;
4. In the event that the defenders decide to resist the pursuer's vindication of her right, they would prima facie be to blame for the litigation;
5. The defenders therefore should be liable in the expenses;
6. In the event that, as a matter of fact, the defenders' contractor did not encroach upon the pursuer's subjects, no right of the pursuer has been infringed;
7. In seeking a remedy for an infringement of right which has not occurred, the pursuer would prima facie be to blame for the litigation;
8. The pursuer therefore should be liable in the expenses.

 

The advantage of the above approach is that it is clear and unambiguous. The problem with it is that, as will be seen, it is more by luck than good judgment that one or other party is awarded the expenses. It is clear that neither of them could possibly know with certainty where the boundaries lay. They had views on that issue, but were reliant upon (or in the pursuer's case later became reliant upon) expert evidence which was, as it transpired, contradictory. At the time of the alleged encroachment, all that the parties had available to them to determine their rights was the Disposition. The subjects had been registered, but the Land Certificate would not be available for a further seven months.

 

In my opinion, the correct approach I should adopt in determining the issue of expenses is to consider the whole circumstances, not only including whether or not there was actual encroachment (as determined by the Land Certificate), but also including the conduct of the parties both prior to and after the incidents of the alleged encroachment. To adopt the words employed in Shepherd v Elliot, if it transpires that there was encroachment, did the pursuer by her conduct cause or contribute to bringing about the law suit, such that I should depart from the normal rule that expenses follow success? On the other hand, if it transpires that there was no encroachment, did the defenders by their conduct cause or contribute to bringing about the law suit, such that, again, I should depart from the same rule?

 

On that basis, I now turn to consider the evidence.

 

 

The Evidence

 

 

General

 

In my opinion, all of the witnesses were trying to tell the truth as they saw it. Thus the issue which I have to address is whether they were reliable and to what extent. No witness was able to give precise evidence on all aspects of the events which had occurred both before and after the dispute arose. Indeed, on some matters, none of the witnesses was able to give me a precise answer. No-one was precise about the date when the meeting occurred on site, during which Mr Smith, the pursuer's surveyor, marked out what he regarded as the compromise boundaries. That is just one example.

 

The witnesses were on occasion in dispute about what was said or agreed during site visits. Indeed, sometimes witnesses took such opposite views that it would, on the evidence, be quite impossible to reconcile them without concluding that one or other witness was lying under oath. An example of that is whether or not at a site visit Mr Smith put a ranging rod into the northmost corner of the laurel hedge to identify the point from which the 19 metre measurement should be taken. Mr Smith was quite adamant that neither he nor his assistant, who was also present, inserted the rod. The first defender, on the other hand, was quite certain that he did. Their evidence is incapable of being reconciled. I have come to the view that on such matters it is impossible for me to reach a conclusion either way. That, of course, would not do if such evidence related to an essential fact. Fortunately, I have decided that where there was an irreconcilable conflict in the evidence it did not relate to a fact which goes to the core of the dispute and its resolution.

 

 

Did the defenders encroach upon the pursuer's subjects?

 

The pursuer's expert was eHe accHThe pursuer's expertRichard Smith. He is a Fellow of the Royal Institution of Chartered Surveyors. He has been practising as a surveyor for over 30 years. He was instructed to plot on the ground the boundaries of the defenders' subjects as they are described in the Disposition. In order to do so, he had to find a datum point, that is a point on the ground which he could be confident had not changed since the whole subjects were first feued. In the laurel hedge along the north west boundary he found the remains of an old post and wire fence which he thought was about at the centre of the hedge. He then measured a distance of 19 metres along the south west boundary, at the end of which he inserted a nail in the boundary wooden fence. He then sought to plot the north west boundary of the pursuer's subjects by measuring a distance of 17.35 metres. In doing so, he sought to keep an angle of 45 degrees at the point marked by the nail. This, he said, was the angle on the plan in the Disposition. In the event, it was impossible to maintain that angle in order to have the 17.35 metre line meet the two metre curve at the north corner of the pursuer's subjects and to be in line with the 26.062 metre line along the north east boundary of the pursuer's subjects. He considered that it was better to preserve the integrity of the measurements rather than the angles as shown on the plan. He therefore reached what he described as a compromise to resolve the contradictions in the plan. He did, however, accept that it was arguable that priority should be given to the angles, particularly the right angle at the south west boundary. He accepted that this compromise plotting would conflict with the title plan in the Land Certificate. He has never plotted the title plan, but was able to say that the compromise plotting would have given the defenders more ground along the 17.35 metre boundary than they were otherwise entitled to in terms of the Land Certificate. The Keeper has appeared to have given precedence to the angles, rather than the measurements. In any event, the plan in the Disposition is also wrong in that the line along the north east boundary of the pursuer's subjects is shown as being 26.062 metres, but when that is scaled on the plan itself it measures 25.8 metres, the starting point being the outside of the wall bounding Damfield Road. That same boundary on the title plan in the Land Certificate scales at 26.25 metres. He also measured on the ground from the outside of the pillar forming part of the wall bounding Damfield Road at the southernmost point until he reached the nail in the fence along the south west boundary of the whole subjects. That measurement came to 28.5 metres. Accordingly, the whole distance along that boundary was 47.5 metres (28.5 metres plus 19 metres). When the title plan in the Land Certificate was scaled, that boundary measured 47.35 metres. In doing so, he was starting from the mid point of the boundary at Damfield Road, which he said was the recognised practice when scaling land certificate plans. This was confirmation that his measurement on the ground was correct, given that the pillar on the wall was 300mm across. Thus, if one took the outside of the pillar, rather than the centre of it, the title plan measurement of 47.35 metres would increase by 150mm, that is to say to 47.5 metres.

 

Mr Smith took the datum point in the hedge for three reasons. First, he was aware that there had been alterations over time in the boundaries of Damfield Road. That was not to say that he knew of any specific alteration in the area around the pursuer's subjects, but he thought it was safer to look for a more certain datum point. Secondly, he had been told by Mr William Souter, one of the founding partners of the firm of Souter and Jaffrey, chartered surveyors, Inverness, that Mr Souter was practising at the same time as the creation of the feues in Damfield Road and adjoining roads, such as Old Mill Road and Annfield Road. Mr Soutar had told him that all of the feues had been delineated by stob and wire fences against which were planted laurel hedge plants. Thirdly, his measurements were consistent with the ordnance survey plan, which had been used for the title plan in the Land Certificate..

 

Mr Smith had other criticisms of the measurements in the Disposition plan. When scaled, the measurement of 19 metres is in fact 19.3 metres, the measurement of 47.569 metres is 47.4 metres, and the measurement of 17.35 metres is 17.5 metres.

 

He considered that the line on the title plan in the Land Certificate along the north west boundary of the pursuer's subjects, when plotted on the ground, falls on the outside - by between 0 and 100mm - of the garden wall, which I took to mean the stone wall built by the pursuer, albeit without taking into account the recess with the patio. He would take the middle distance of 50mm.

 

The defender's expert was Mr William MacDonald. He described himself as a chartered architectural technologist. He said that he took building schemes from inception to completion. I gained the impression that his role was very similar to that of an architect or project manager. He had been doing such work for 30 years. He confirmed that he had been instructed by the pursuer to prepare the plan for the Disposition. He had also been instructed by the pursuer to apply for planning permission to erect a single storey detached bungalow on the site. He said that he prepared the plan for the Disposition in October 2003. He measured 19 metres from the north west boundary, which he and the pursuer agreed was from a dilapidated fence. He recalled that there was a strainer post at the northmost corner of the site, as well as the remains of a fence along the north west boundary, within a laurel hedge. There were occasional posts, but some of them were broken or loose. They were all in poor condition, but it was possible to identify a line which the fence probably took. He also saw four posts along from the westmost edge of the whole subjects which was a fence in the laurel hedge, but behind the adjoining property known as 11A Damfield Road. From those posts to the strainer post at the other end was roughly a straight line which was therefore appropriate to treat as the true boundary and datum point. He was sure that the patio was not built when he prepared the Disposition plan; at that time the area of and around the patio as later built was a mixture of grass and bedding areas with a few shrubs and flower plants. He thought that the patio was built after the pursuer had sold the land to the defenders - sometime during the site clearance stage in 2004. After the dispute arose he was instructed by the first defender to check the boundaries. He prepared a draft composite plan (number 6/1/4 of process) which was intended to be a replica of the Disposition plan, but with the patio and wall added. This would show whether or not the patio or wall (or part of either or both) fell within the defenders' subjects. He emphasised that this was only a draft plan which had been prepared for the first defender's consideration and comment. He was unaware that it was now in the public domain. He accepted that it differed from the Disposition plan, in that it showed the north east boundary of the defenders' subjects as measuring 47.275 metres, while the Disposition plan showed the measurement as 47.569 metres, and the north west boundary as 24.4 metres, while the Disposition plan showed 24.314 metres. He had since measured the site again and was certain that the correct measurements for these boundaries were 47.275 metres and 24.4 metres respectively. He pointed out that the measurement of 47.275 metres agreed with the measurement of 155 feet in the plan in the Feu Charter. He could not explain the reason for the errors. Notwithstanding this confusion, he was quite satisfied that the draft plan correctly showed the location of the patio and wall - and showed that part of the patio and wall was within the defenders' subjects. In cross examination, he explained that the Disposition plan was prepared from a download of an ordnance survey computer programme, which produced a measurement along the north east boundary of 47.569 metres. He had expected it to be 42.275 metres. He had left it as 47.569 metres because he knew that the Keeper would use the ordnance survey plan in determining the subjects to be registered. He said that for over 50 metres of distance as measured on the ground there will be a discrepancy of 300mm or thereby when measured on an ordnance survey plan. The Keeper generally accepts that there can be such a discrepancy when measuring a distance such as 42.275 metres. He accepted that the physical measurement by Mr Smith of 19 metres along the south west boundary to the nail would result in the whole of the patio and wall being within the pursuer's subjects, whether in accordance with the Disposition plan or with the title plan in the Land Certificate.

 

The most striking thing about all this evidence was that the respective experts disagreed on more than the datum point. The parties sought my permission for a site visit. I readily agreed, in the hope, if not expectation, that at the very least the experts would be able to agree on everything else. Such hope or expectation proved to be wrong.

 

I have already noted that, as regards the Disposition, Mr Smith was firmly of the view that if one took his datum point along the old fence - or, rather, the remains of it - in about the middle of the laurel hedge, it was impossible to plot the plan for the reasons I have above described. Moreover, he considered that even if one took the datum point proposed by Mr MacDonald, it was still impossible to plot the plan. Mr MacDonald, in contrast, considered that from his datum point the plan plotted correctly.

 

I preferred the evidence of Mr Smith, both in his identification of the correct datum point and the impossibility of identifying the plot whether from his datum point or from the one proposed by Mr MacDonald. I found as unconvincing Mr MacDonald's attempts to explain away the obvious errors on his second plan (number 6/1/4 of process). I was also impressed by Mr Smith's evidence of the historical background to the original division of the feues in Annfield Road and Damfield Road, as well as his explanation of the significance of the use of ordnance survey plans and maps to prepare the plans.

 

The effect of this conclusion is that it is impossible to identify the correct boundaries on site from the Disposition.

 

As regards the Land Certificate, there seemed to be no dispute that if it were plotted on the ground the patio and stone wall would be within the pursuer's subjects; nor was it in doubt that the new brieze block wall built by the defenders was within their subjects as identified in the Land Certificate.

 

As regards encroachment, Mr Smith was invited to consider some of the photographs, namely numbers 5/7D and E and 5/8/3C. He considered that they showed that the soil that had been removed was in a line past the patio wall (that is, nearer to the pursuer's house) and that it therefore fell within the pursuer's subjects, as identified by the Land Certificate. By definition, he could not say the same about the Disposition, given that it was impossible to plot it. (He did consider that the encroachment went past his plotting rods, but, as I have already noted, they were set at a compromise position which had no legal significance and was there merely in an attempt to reach what parties might agree was a fair, if imperfect, solution to the problem set by the inaccuracy of the Disposition plan.)

 

There was much discussion about a blue rope which can be seen in some of the photographs. The pursuer's position, as I understood it, was that this was the line to which Mr Hampton intended to dig. Mr Hampton, on the other hand, was firmly of the view that he was instructed to keep to the far side of the patio wall - that is to say, to play it safe by not encroaching on to what the defenders appeared to think might be the pursuer's land - or, perhaps, what the first defender guessed was the land which the pursuer thought she owned. His line for that was marked by the blue string, but Mr Hampton's recollection was that it was lying along a line behind the patio wall and not over the patio as shown in the photographs. On that matter I prefer Mr Hampton's evidence. He had no axe to grind and, in any event, he came across to me as an honest witness. I suspect that the pursuer's view was probably based upon a misunderstanding, which has since, to her, become an utter certainty - a not uncommon state reached by a party in a dispute such as this, where feelings have run so high for so long. In cross examination, Mr Hampton was invited to consider the photograph number 5/7/1A of process. This appears to show that the disturbance of soil goes past the line of the outside of the patio, which he said had been the line to which he should dig. He simply said that he could not remember if he had dug that far. He suggested, albeit tentatively, that it might have been caused by slippage. In re-examination, he said pointedly that the digging had been done 14 months before the date he was giving evidence.

 

The first defender's position was slightly different, in that he said that he had instructed Mr Hampton to dig along the disputed boundary along a line which was marked by the right hand side of the second slat from the left (being the slat to the right of the slat with the white mark on it) as shown on photograph number 5/8/1H of process. But his evidence did coincide partly with that of Mr Hampton, in that the first defender said that Mr Hampton was told not to interfere with the stone wall forming the rear of the patio. The digging was to enable the defenders to erect the brieze block wall, as shown in photograph number 5/7/1/A of process.

 

Witnesses other than Mr Smith were asked about whether any of the photographs in process showed that the digging by Mr Hampton did encroach on the pursuer's land. At the end of the day, it seems to me that it is obvious - not least from the photographs that Mr Smith was shown - that ground which is nearer to the pursuer's house than the patio wall has been disturbed. I accept Mr Smith's evidence that this interference was not caused by slippage. There was no suggestion that there was any other possible cause of the interference other than Mr Hampton's digging. I therefore conclude that the disturbance - most usefully shown in the photographs, numbers 5/7/1/A, D and E - was caused by Mr Hampton.

 

As there is no dispute that the patio wall falls within the pursuer's subjects in accordance with the Land Certificate, it therefore follows that when Mr Hampton was working on site, he did indeed encroach upon the pursuer's subjects.

 

 

The actings of the parties

 

I find it unnecessary to rehearse all of the evidence which might touch upon the actings of the parties.

 

There can, I think, be no dispute that neither party could possibly have known with certainty where the boundaries lay after the conveyance of the defenders' subjects. I have already decided to accept Mr Smith's evidence that it is impossible to plot the Disposition plan on the ground. The first defender appeared to accept at an early stage of the dispute that there was uncertainty about the boundaries - or, at the very least, that he should have it accurately plotted on the ground. For that reason, he instructed Mr MacDonald in March 2004 to mark out the plot. Given that he had prepared the Disposition plan, that seems to have been a sensible approach. According to the first defender, the pursuer first raised the issue about the boundary in March 2004, when contractors were excavating the whole site in preparation of the house building works. Certainly by April 2004, the pursuer had built her stone wall and patio.

 

The correspondence between the parties from that point on may be of significance.

 

The first letter is dated 16 April 2004 and is from the pursuer's solicitor to the defenders' then solicitors. It provides, inter alia, as follows:

"I have this afternoon been advised by my client that your clients are seeking to encroach on her land when marking out the purported boundaries of the building plot which was sold by my client.

I am writing to intimate that my client does not accept that the boundaries as marked out by your clients are accurate. She maintains that such boundaries encroach significantly into land retained in her ownership and that your clients have no right or title to use or carry out works on the area in dispute.

Clearly it would be beneficial to have the exact boundary established on the ground prior to your clients carrying out any building work." (Number 6/5 of process)

 

The defenders' then solicitors replied per their letter of 20 April 2004. They denied that there had been encroachment, but made the following suggestion:

"In an attempt to resolve this matter [our clients] would be quite willing to agree to a joint submission to an independent surveyor to determine once and for all where the boundary lies. This would be on the basis that the expenses of such independent party would be met by your client in the event of the boundaries as marked by our clients proving correct or our clients in the event that their boundaries are incorrect.

If this course is acceptable to your client, please let us know by return along with your client's list of suggestions as to who should be appointed in the submission." (Number 6/6 of process)

 

No reply was received.

 

Accordingly, the defenders present solicitors wrote to the pursuer's solicitor on 27 April 2004 in the following terms:

"It is now clear that issues require to be resolved regarding the boundaries.

With reference to the third paragraph of the letter of 20 April, our clients require to know by close of business today whether your client will now agree to the instruction jointly of an independent surveyor which it is hoped would resolve the dispute. Should your client fail so to agree, it would appear that formal proceedings will be required to deal with the boundary question and other issues." (Number 6/7 of process)

 

The pursuer's solicitor subsequently acknowledged receipt of that letter and said that he awaited the pursuer's instructions. (Number 6/8 of process)

 

Nothing further was heard from the pursuer until her solicitor wrote on 6 July 2004 in the following terms:

"My client has noticed that various markings have been made purporting to be (my client assumes) your clients (sic) understanding of where the true boundaries lie.

I am writing on behalf of my client to advise that these markings are also considered to be inaccurate and encroach on my client's land. My client reserves her right in the event that your client attempts to build on her land and utilise it in any way, to require your client to remove any such infrastructure or buildings. You will no doubt note the position.

With regard to the question of the joint remit my client's position is in effect that the true position of the boundary is clear. There is accordingly in her view no need for any joint remit. Should your client (sic) of course wish to engage a professional surveyor to properly map the area and thereafter let us see a copy of the report, my client may reconsider her position." (Number 5/1/2 of process)

 

The markings to which the letter refers are the white ones made by Mr Christie on the defenders' behalf on the boundary fence as shown on the photograph number 5/1/5G of process. To this the first defender attached a blue rope. The pursuer - wrongly, as it turned out - assumed that these markings and the rope were what the defenders thought was the boundary on the north west side of her subjects. (The first defender said that he told the pursuer that the markings and rope were not along the boundary. I conclude that he was mistaken in that, but, whether that is right or not, I was satisfied that the pursuer was genuine in making the assumption she did.)

 

The evidence was not altogether clear, but I have concluded that while the pursuer had instructed Mr Smith by the time of this last letter, he did not do his detailed measurements on site until 26 August 2004. It is therefore plain that until that date the pursuer had no reason to believe what the exact boundaries were, other than what she had seen in the Disposition and what she had thought she had agreed with Mr MacDonald when she had employed him to define the boundaries in the first place. On that matter, her evidence was that there was already an old small brieze block wall along the north west boundary and it was from there that Mr MacDonald measured the site to be sold. Mr MacDonald thought that there might have some structure there, but could not recall anything more than that. He said that he agreed with the pursuer the point in the laurel hedge from where the measurement of the plot would begin and that it should be 19 metres from that point along the south west boundary. He said that they did not identify exactly where it would end up as the patio and stone wall had not yet been built. Tellingly, he conceded that in retrospect it would have been better if that had been done.

 

In my opinion, it is clear from the pursuer's evidence and her demeanor in giving it that the she genuinely believed that the patio and brick wall were built on her ground, no matter when they were built. At worst for her, there was a misunderstanding between her and Mr MacDonald as to where the new north west boundary of her retained subjects would lie. Nevertheless, she was, at least in her own mind, in no doubt where it was to be.

 

In turn, it is clear from the first defender's evidence and his demeanor in giving it that he genuinely believed that where Mr Hampton was instructed to dig was within the defenders' subjects. That was reinforced by the fact that he had obtained from Mr MacDonald an exact measurement on the ground.

 

The defenders' solicitor strongly founded upon the above correspondence in showing the unreasonable position adopted by the pursuer; if she had agreed to the joint submission to the independent surveyor all would have been resolved without resort to litigation. As the first defender said more than once in his evidence, he has never known what the pursuer actually thought was her boundary on the disputed side. All he ever wanted was to determine exactly what that was. He had no other interest. In particular, he had no other interest in - or need for - any of the disputed ground. (The first defender did say that a Mr Matheson (another contractor employed by the defenders) was told by the pursuer that she considered that her boundary was 4.5 metres from her house, but, as the first defender said, this was third hand information. It was clear to me that he did not think it safe to rely upon it as a clear indication of the pursuer's view.)

 

With the benefit of hindsight, it is easy to say that the pursuer would have been wiser to have agreed to the joint submission. On the other hand, she had no reason, other than the defenders' view, to doubt her own understanding of what the true boundaries were. I know of no rule of law which would have compelled her to agree to a joint submission. It is also doubtless true that the pursuer would have been better telling the defenders exactly where she thought the boundary lay, but, again, I know of no rule of law which would have compelled her to do so.

 

The fact of the matter is that, despite many days of evidence minutely looking into what the parties did and thought at various times, I find it impossible with any confidence to put myself into the position of either party at the time that the interim interdict was first sought. The pursuer's first salvo by her solicitor's letter of 16 April 2004 was, strictly speaking, an appropriate letter in that it suggested that it would be a good idea to have the exact boundary established. But it did, nevertheless, threaten court proceedings. In the same way, the reply by the defenders, per the letter of 20 April 2004, was appropriate. But it did, nevertheless, allow of the possibility that the pursuer would incur the expense of the joint submission.

 

It is plain to me that none of this litigation (and this is why I have earlier called it lamentable) would have arisen if the parties had simply talked directly to each other. It is impossible now to apportion blame for that conversation not taking place. In many respects, they were equally to blame.

 

As it has turned out, the parties would not have been able to resolve their differences by plotting the plan in the Disposition. But they did not know that at the time.

 

In these unhappy circumstances, in order to answer the question posed, it seems to me that I have to have regard first of all to the fact that, as it has turned out, the defenders did encroach upon the pursuer's ground. In my opinion, she was justified in raising the action and is therefore entitled to an award of expenses for at least some of the litigation.

 

While I am satisfied that the defenders, through Mr Hampton, did not wish to encroach upon the pursuer's ground, that is what they did. In reaching that conclusion, I have preferred the evidence of the pursuer's expert. I am afraid that is the risk the defenders took by positing their case on Mr MacDonald's evidence. The pursuer took the same risk with Mr Smith. More by chance than good judgment, she was right.

 

The parties, no doubt under advice, were alive to the fact that their rights would at the end of the day be determined by the Land Certificate. For that reason, the action was sisted from December 2004 to 22 June 2005 (the interlocutor on that date should have provided that the sist be recalled). In August 2004, the defenders had built a brieze block wall near to the disputed boundary and it was accepted by both parties that it did not encroach on to the disputed ground. There has been no further encroachment by the defenders since the interim interdict had been granted. In cross examination, the pursuer was asked if, once the boundary was decided upon by the court, she still thought that there was a risk that the defenders would trespass on her land. She said that she would indeed think that. Her solicitor said, during his submissions, that she reached the conclusion that there was no risk of encroachment only during the course of the proof - particularly, when the defenders built a substantial new fence and garage wall along the disputed boundary in the second half of 2006. Despite the pursuer's views, I consider that by August 2004 there was no reason for her to be apprehensive that the defenders would breach the interim interdict.

 

As I have said, a simple approach is to award the expenses of the whole action to the pursuer on the grounds that there was encroachment, that the application for interim interdict was therefore justified and, following the authorities, that the pursuer was entitled to have a proof to determine that. But, as I have also said, the whole circumstances are inevitably much more complicated than that.

 

I have already set out the approach I am required to take in law in deciding the liability in the expenses. A term which is not used in them, but in practice is often employed, is that sometimes a broad, if often blunt, axe has to be wielded in order to achieve justice between the parties.

 

With that instrument in mind and for all the considerations I have raised in the course of this judgment, it seems to me that justice will be served by awarding the pursuer the expenses of the action until the sist was recalled. I also consider that she is entitled to recognition that some, but not all, of the proof was required in order to establish that encroachment did take place. I will award her one half of the expenses of the action from the date the sist was recalled.

 

The rest of the procedure in this action, in my view, could easily have been avoided if the parties had applied a bit of common sense. Instead of that, the dispute was beset by mutual suspicion and misunderstandings. It seems to me that both parties are equally to blame for that. Accordingly, quoad ultra, I will find no expenses to be due to or by either party.

 

I will certify Mr Smith as an expert witness. There was no opposition to that.

 

 

 

The position of the second defender

 

The defenders' solicitor made a submission that even if I find that the pursuer is entitled to expenses in whole or in part, I should on any view find her liable in the second defender's expenses. He submitted that the nature of an action for interdict was that it was a personal one against the person who has done or threatened to do the acts complained of (Bankier Distillery Co v Young's Collieries Limited 1899 SC 89). The pursuer has led no evidence of any acts done or threatened to be done by the second defender. The first defender in evidence said that the second defender was aware of what was happening, but there was no evidence that she had assisted or supported the first defender. Reference was also made to Inverurie Magistrates v Sorrie 1956 SC 175.

 

In my opinion, no distinction should be made for present purposes between the first and second defenders. The reason is that the second defender in her pleadings has not sought to distance herself from the actings of the first defender. The critical averments relate to the incidents involving Mr Hampton. It is clear from Answer 5 in the Closed Record that the second defender admits that Mr Hampton was instructed by both defenders, not just by the first defender (p12, lines 20-22; p13, lines 2-3). That distinguishes the instant case from Inverurie Magistrates v Sorrie, in which the pursuers sought interdict against the grazing of horses on certain ground by a father and his two sons. Decree de plano was granted against the two sons, but after proof it was found that, as Lord Patrick put it, "the pursuers failed to prove that the first defender was the owner of the horses which had committed the recent acts of trespass on their fields. They made no proper attempt to establish that he was a party to the actions of his son (sic) in trespassing with his horses on the fields in question." In the instant case, the pursuer did not need to prove that the second defender was a party to the actions of Mr Hampton because she expressly admits it on record.

Objections during the course of the proof

 

At various times during the proof, certain questions posed by the defenders' solicitor, which were objected to, were allowed subject to competency and relevancy. The pursuer's solicitor addressed me on two of these in his submissions.

 

He said, first, that he still objected to the line of evidence that the pursuer agreed a particular boundary with Mr MacDonald and the first defender. He said that this line was not put to the pursuer and was not adequately pled.

 

I am by no means certain to which particular objection the pursuer's solicitor was referring. There was an objection at an early stage of the examination in chief of the first defender to the discussions between the parties prior to the purchase by the defenders. The first defender spoke to a meeting on site where the pursuer pointed out the boundaries. He said that the pursuer said that she was to erect a fence along the north west boundary of the subjects to be retained by her and, at a later point in his evidence, that the 19 metre boundary was to be from the back of the new fence along the north west boundary. I agree with the pursuer's solicitor that this is irrelevant to the issue now in dispute, but do not agree that all of these matters were not put to the pursuer in cross-examination. In cross-examination, the pursuer was asked if she had any discussions with the first defender about the size of the plot. She said she did not and added that the sizes were clearly marked out by the architect in the planning permission - presumably a reference to the dimensions taken by Mr MacDonald. There was, so far as my notes disclose, no mention of a discussion about erecting a fence. I agree that there is no mention of any of the matters objected to in the defenders' pleadings. In Answer 5 (at p13, lines 8-10) the defenders aver that the pursuer had undertaken to erect a new fence on the correct boundary line in terms of the missives between the parties, but there is no mention of any discussions about that matter. I should have thought that any such discussions would be irrelevant anyway, being prior communings, but this was not a point taken in the objection. I shall sustain the objection on the ground of lack of fair notice in the pleadings. If I had had to consider whether these matters had been raised in cross-examination of the pursuer, I would have sustained the objection, but only in so far as it related to the issue of any prior discussion and agreement about the erection of the fence.

 

The pursuer's solicitor also said that Mr MacDonald gave evidence of a pre-existing bad relationship between the parties. This, he said, was not put to the pursuer. My recollection is that the question posed in examination in chief was whether there were any issues between the pursuer and the first defender at or about the time of the purchase, but that Mr MacDonald's reply was something to the effect that a cash payment was agreed between the parties in addition to the purchase price in the Disposition. But he went no further. It was not clear to me what the defenders' solicitor wished to extract from Mr MacDonald by the question, but I doubt if it was the answer he received. In any event, I consider that the question was a neutral one; the pursuer's solicitor was anticipating evidence which did not materialise. I therefore repel the objection.

 

 

Postscript

 

Every generation of litigators can point to examples of civil actions about minor matters resulting in grossly disproportionate expense. This case is one of those. It is further evidence of the need to reform our rules of civil procedure, which, despite the reforms of 1993, in practice still prevent the court intervening at an early stage of an action to prevent needless expense. If this had been a commercial action governed by its special rules, it is likely that only a tiny fraction of such expense would have been incurred. That should be the future model for all civil actions.