OUTER HOUSE, COURT OF SESSION

[2007] CSOH 90

A566/04

OPINION OF LADY DORRIAN

in the cause

MARK YAXLEY AND ANOTHER

Pursuers;

against

MRS SHARON ROE MORRISON or GLEN and OTHERS

Defenders:

________________

Pursuers: Kelly; Allan McDougall & Co, SSC

Defenders: Bartos; Russell & Aitken

Office of the Solicitor to Scottish Executive (for fourth defenders)

30 May 2007

[1] This is a neighbourhood dispute in relation to three properties, "The Mill", "The Stables" and "The Granary", which once formed part of the same subjects. Very roughly speaking, the property known as "The Stables" runs along the Northern side of the area comprising the original subjects. "The Granary" lies on the Eastern side at the North and "The Mill" lies in the South Eastern corner. Running East to West along a line between "The Granary" and "The Mill" is the site of an old Mill Lade, now filled in. The original access to the properties, from the main road, followed a route East past "The Stables", then South past the "The Granary" and thence to "The Mill". It is averred that in 1996 the first defenders and the pursuers agreed to a new access route running first South and then East ("the new access way"). The whole subjects were previously in the ownership of the female first defender and her then husband by virtue of a disposition in their favour of January 1993. Later in 1993, they disponed "The Mill" to the pursuers, conveying with it a servitude right of access over an area broadly following the original access route. In June1994, they disponed to the pursers, by now owners of "The Mill", a field to the West of the area previously disponed to them along with an area which had formerly been part of the Mill Lade. In 1995, the property remaining in the hands of the female first defender and her then husband was transferred to the female first defender and her partner, "the first defenders". In 1997 they conveyed "The Granary" to the second defender, purporting to convey with it a servitude right of access over a strip of land 4 metres wide lying immediately to the South of "The Granary" and over the "new access way". This is recorded in the Title Sheet FFE19065.

[2 ] The description of the Northern boundary of the pursuers' property in the 1994 disposition differs from, and is greater in extent than, that which is contained in the 1993 disposition. They seek declarator that the Northern boundary is that contained in the 1994 disposition. They aver that by the time of the 1997 disposition containing the purported servitude in favour of the second defender, the first defenders no longer had title to the area South of "The Granary" nor did they have title over the relevant part of the "new access way". They seek rectification of the second defender's Title Sheet FFE 190656 and reduction of the 1997 disposition insofar as it purports to create said servitude. In addition they seek declarator of the servitude in their favour referred to in the 1993 disposition and further rectification of the second defender's Title Sheet to reflect that. Failing rectification, they seek payment from the Keeper of the Registers by way of indemnification. There are also conclusions for removal of fences etc and for interdict.

The Issue

[3 ] The case came before me on the procedure roll on the preliminary pleas of all parties. There were numerous arguments on general issues of relevancy, but most of these resolved, save those which are dealt with at the end of this opinion. The main substantive issue concerned the relevancy of certain averments in relation to the conclusion for rectification. Section 9(3) of the Land Registration (Scotland) Act 1979 restricts the circumstances in which the Keeper may rectify the register where doing so would prejudice a "proprietor in possession". The central issues in the present case is whether the second defender, as proprietor of the subjects contained in title sheet FFE19065, which includes a servitude right, is a "proprietor in possession" for the purposes of section 9(3).

Submissions

Fourth Defender

[4 ] Originally the submissions for the fourth defender were that deletion from the second defender's Title Sheet was incompetent since it would prejudice her interest as proprietor in possession. However, counsel recognised that there were issues which required to go to proof relating to whether she fell within any of the exceptions to section 9(3), and possibly relating to the exact extent of the prejudice and that a proof before answer was appropriate. He submitted however, (and all Counsel agreed), that the Court could nevertheless determine the question of whether the second defender was a "proprietor in possession" for the purposes of section 9(3).

[5 ] He submitted that by virtue of section 3(1)(a) of the Land Registration (Scotland) Act 1979, the person registered receives a real right to the interest in land and in any servitude or pertinent forming part of that interest. An access route is necessarily part of the interest. Provision for rectification of the register is made in section 9, but section 9(3) restricts the circumstances in which the Keeper may exercise his power to rectify where doing so would prejudice a "proprietor in possession". That subsection provides:

"..(3) Subject to subsection (3B) below, if rectification under subsection (1) above would prejudice a proprietor in possession -

(a) the Keeper may exercise his power to rectify only where -

(i) the purpose of the rectification is to note an overriding interest or to correct any information in the register relating to an overriding interest;

(ii) all persons whose interests in land are likely to be affected by the rectification have been informed by the Keeper of his intention to rectify and have consented in writing;

(iii) the inaccuracy has been caused wholly or substantially by the fraud or carelessness of the proprietor in possession; or

(iv) the rectification relates to a matter in respect of which indemnity has been excluded under section 12(2) of this Act;

(b) the court or the Lands Tribunal for Scotland may order the Keeper to rectify only where sub-paragraph (i), (iii) or (iv) of paragraph (a) above applies or the rectification is consequential on the making of an order under section 8 of the Law Reform(Miscellaneous Provisions) (Scotland) Act 1985.."

[6] Indemnity in respect of loss resulting from rectification or the refusal to make rectification is provided for in section 12. However, under section 12(3) there is no entitlement to indemnity where

".......(d) the loss arises as a result of any inaccuracy in the delineation of any boundaries shown in a title sheet,.................

...... (g) the loss arises from inability to enforce a real burden or condition entered in the register, unless the Keeper assumes responsibility for the enforceability of that burden or condition;

(h) the loss arises in respect of an error or omission in the noting of an overriding interest;

...... (l) the claimant is the proprietor of the dominant tenement in a servitude, except insofar as the claim may relate to the validity or the constitution of that servitude".

'Overriding interest' is defined in section 28 as including "the right or interest of .... (d) the proprietor of the dominant tenement in any servitude which was not created by registration in accordance with section 75(1) of the Title Conditions (Scotland) Act 2003."

[7 ] Five submissions were made on behalf of the fourth defender:

(1) Under the Title No. FFE19065, the second defender is a "proprietor in possession" within the meaning of section 9(3), having a real right in the subjects.

(2) The subjects include the servitude right of access.

(3) That servitude is necessary for the enjoyment of the second defender's property.

(4) She would be prejudiced if it were to be deleted and

(5) She is therefore entitled to the protection of section 9(3) of the 1979 Act.

[8 ] Counsel advanced the following propositions:-

(1) The policy of the 1979 Act is that a proprietor in possession should not be disturbed in the peaceful occupation of a registered property.

(2) That policy recognises that monetary compensation is of limited value for a person whose enjoyment and natural occupation of property is disturbed by rectification.

(3) The intention of the Act is to seek to prevent interference with such enjoyment except in very limited circumstances.

(4) A servitude right of access runs with land. It is a natural adjunct of the land, necessary for the enjoyment of it. The proprietorship of the land and the servitude are inseparable. A servitude right of access cannot, and does not, exist in isolation from the subjects it serves.

(5) The natural meaning of the Act is that a person who owns the dominant tenement in a servitude is the proprietor of that servitude. If he is in possession of the subjects and exercises rights of access over the servitude, then it follows that he is the "proprietor in possession" of the servitude. To separate the proprietorship of the servitude and of the land is unhelpful and to refer simply to the proprietor of the servitude is to some extent misleading, because the servitude always runs with the land. The proprietor of a dominant tenement in a servitude is proprietor of the land and since the servitude goes with the land he is also proprietor of the servitude.

Authorities

[9 ] The phrase "proprietor in possession" is not defined in the Act. It was considered in the case of Kaur v Singh 1999 S.C.180 which held that "possession" for the purposes of section 9(3) was possession of the subjects rather than simply of a legal interest in the subjects and that the holder of a heritable security was not a "proprietor in possession" for the purposes of the section. Counsel submitted that the essential distinction between that case and this is that a heritable security does not run with the land in the same way as a servitude. The servitude runs with the land even to the extent that it disappears if the dominant tenement becomes part of the land which forms the servient tenement. On the other hand, a heritable security is a separate and distinct interest in land which exists independently of any right or possession in the land. The case of Kaur can thus be distinguished on its ratio. Whilst a servitude can be interpreted as an interest in land, it can and should be interpreted as an integral part of the proprietor's right to particular subjects. The owner of a dominant tenement in a servitude however holds both the land and the interest in the form of the servitude. They are inseparable. That legal concept is reflected in the practical reality of how a servitude is recorded in the title of a dominant tenement - in the property section. The policy of the Act strongly favours the argument that the holder of a servitude should have the protection of section 9(3). Kaur is consistent with the proposition that the land protected from rectification is the land identified in the "A" section, with all the various rights encompassed within it. A servitude runs with the land and is part of a bundle of rights which cannot be separated out. The proprietor of the dominant tenement is inevitably the proprietor of the servitude. If one is in possession of the dominant tenement - in this case actually living in it and exercising the right of access - then one is in possession of that bundle of rights made up of the dominant tenement and of the servitude right of access

[11 ] Counsel referred to Reid & Gretton's Conveyancing 2003 at pages 88-91 where the authors, having noted that the interaction of servitudes with registration of title is awkward and sometimes unclear, go on to observe that it has not been clear how servitudes might fit into the Kaur v Singh analysis. They note that "On the one hand, a servitude does not command its own title sheet. But, almost uniquely among real rights, a servitude is not freestanding in nature, but can only be held by a person who is at the same time owner of the land (i.e. of the dominant tenement). And since such a person is necessarily a 'proprietor' of that land, the way is open to argue that he or she is 'proprietor' also for the purposes of the servitude."

[12 ] Counsel then referred to the Lands Tribunal decision Griffiths v Keeper of the Registers of Scotland, unreported, 20 December 2002, where, in an application for deletion of an invalid servitude from the register, a question arose whether the "holder" of the servitude was a "proprietor in possession" who would be prejudiced by rectification. The Lands Tribunal held that he was not. Counsel submitted that Griffiths was wrongly decided. The Tribunal had proceeded on a concession that the purported servitude had to be looked at as a separate right, which was an incorrect approach. The servitude cannot be looked at as separate from the dominant tenement. The servitude cannot exist without the property and in most cases the property cannot be possessed without the servitude. They interpreted Kaur as referring to land in a tangible or corporeal sense. Kaur says there must be physical occupation but does not say there must be physical occupation of physical property, and the position of long leases demonstrates that point. The Tribunal interpreted Kaur as meaning that rights which do not have their own title sheet cannot receive protection under section 9(3). That arises from the erroneous separation of the servitude from the dominant tenement. The whole rights under section "A" are entitled to protection of the Act, at least insofar as capable of being real rights and of being physically possessed. The Tribunal misdirected itself in treating possession of a piece of land as being different from possession of a real right. It gave insufficient weight to the policy of the Act or the situation where enjoyment of the property depends on the access. That factual situation was not before them. It seems that there was a concession that there was no need for the servitude of access in that case. For all these reasons, Griffiths should not be followed.

[13 ] Reference was next made to Safeway Stores plc v Tesco Stores Limited 2004 S.C.29 at page 59, paragraphs 77 and 78, where Lord Hamilton addressed the question of what was meant by "a proprietor in possession", concluding that the term

"imports some significant element of physical control, combined with the relevant intent; it suggests actual use or enjoyment, to a more than minimal extent, of the subjects in question as one's one. It is a 'proprietor' who has, on the faith of the register, had such enjoyment or use who is protected against rectification. A proprietor who has not had such enjoyment or use is not so protected...".

Counsel submitted that whilst one is not physically and technically in possession of the land over which the servitude runs, the servient tenement, the whole point of the servitude is that the proprietor of the dominant tenement is entitled to control of the servient tenement to the extent necessary to exercise the servitude right. He has "enjoyment or use" of the servitude. The exercise of the servitude is necessary for the enjoyment and possession of the dominant tenement. In that sense possession and control go together. It is a natural use of language to talk of possession of a servitude.

It is certainly possible to talk of possessory acts regarding servitude.

[14 ] Counsel also referred to Mutch v Mavisbank Properties Ltd 2002 SLT (Sh Ct) 91 where in an obiter passage the Sheriff Principal said

"I am rather inclined to the view that in a case where the keeper is being asked to rectify the Register by deleting a servitude right of access from the title sheet, a dominant proprietor would in normal circumstances be 'prejudiced' and would as a matter of parliamentary intention fall to be regarded as a 'proprietor in possession'".

I was also referred to The Duke of Athole v William McInroy & Others 1890 17R 456 and 18R H.L.46.

Pursuers

[15 ] Counsel for the pursuers submitted that the owner of a dominant tenement in a servitude of way is not a proprietor in possession in respect of his interest in the servitude. He is not entitled to the protection of section 9(3) quoad the servitude. It was plain from Kaur v Singh that there are two separate requirements for protection under section 9(3). The first is to be a "proprietor" and the second is that one should be "in possession". The fourth defender erroneously conflates these two ideas. One must first ask whether the second defender (a) is a proprietor and (b) is in possession. A servitude forms a separate and separable interest in land. It is one of the distinct things which can be an interest in land. In Kaur the Court determined that the word "proprietor" in sub-section (3) of section 9 means "an owner of land" or those with equivalent rights of tenure which are to be equiparated to "an owner of land". It does not take account of any subsidiary rights which might go with that land. There is a difference between an owner of land who, subsequent to rectification, will be ousted from it, and the owner of the dominant tenement vis-à-vis a servitude adhering to it, because there is a very big difference in degree. To lose one's land is considerably more serious than to lose a servitude right of way over that land.

[16]. In Kaur the Court notes that the Act treats the interest of an owner of land differently from that of the holder of the standard security. By analogy a servitude comes within a similar analysis. A servitude is even further away since it is not necessarily registered at all. It would not command its own title sheet. The defender made much of the fact that it is noted in the property section not the charges section, which is true. Prior to the Title Conditions (Scotland) Act 2003, a servitude could be registered in the title of either tenement. Now it must be registered in both. If registered in the title of the servient tenement, it would not be in the property section but in the burden section and need not have appeared at all in the title of the dominant tenement. See Balfour v Kinsey 1987 S.L.T.144 and Candleberry v West End Home Owners 2006 CSIH28. The distinction made in Kaur at p191B between heritable securities and rights of ownership is thus equally applicable to servitudes. As Reid & Gretton point out there is a contrast being made between the primary rights, which would have their own title sheet, and other rights which may be regarded as secondary or subsidiary. A right to a servitude clearly falls within the second category.

[17 ] In Griffiths the Tribunal followed the guidance in Kaur, which gave the word "proprietor" a very restricted meaning, and reached the correct decision. In Griffiths the Tribunal considered that the emphasis in Kaur was on land as a corporeal asset. The use of the word "corporeal" may be unfortunate, but Kaur did emphasise the need for physical possession (189H). Physical occupation was to the forefront of the reasoning. Kaur rejected the notion that ownership of any interest in land brought the protection of section 9(3) to the owner.

[18 ] It does not follow that because section 3(1)(a) of the Act talks of certain rights and interests in land forming part of other rights, all those rights should be bundled together and given the protection of 9(3). This is particularly so in the case of a servitude which is both separable and incorporeal. The fact that if property is conveyed the servitude is conveyed with it does not mean they are inseparable. They are separable and the concession in Griffiths was correctly made. A servitude is an interest in land. The fact that one is a proprietor of land which may have a number of interests attached to it does not mean that one is a proprietor of all of those interests for the purposes of section 9(3), because the Court in Kaur held that "proprietor" in 9(3) must be interpreted in quite a specific way.

[19 ] It was not submitted that in no circumstances could a subsidiary right have protection. For example, textbooks give examples of servitude right to have a septic tank on someone's land and suggest that the owner of the dominant tenement is to such an extent in permanent physical possession of the servient tenement. The same does not apply to a right of way. Losing a servitude of way giving access to one's property would be of significance but is not the equivalent of ejection. Counsel for the defenders suggested that it was the equivalent to ejection in some circumstances, but a right of access would not be removed even if a servitude was deleted from the title sheet. A servitude of necessity would be created over the land from which the property is split, i.e. a right over the land owned by the first defender. See Bowers v Kennedy 2000 S.C.555 at 560. When the Lands Tribunal say that the loss of access is not equivalent to ejection, they were right to do so.

[20 ] If the Court were with the pursuers so far, that would be an end of the matter. Otherwise one would need to address the issue of possession, and whether, if she is a proprietor, is she also a proprietor "in possession".

[21]. In Kaur it was made clear that "possession" is the possession of the subjects and not of a legal interest in the subjects. The emphasis is on the possession of land. A servitude cannot be possessed in a way necessary to bring it under section 9(3). Reference was made to Stair, IIvii,1, where it is pointed out that servitudes have use rather than possession to consummate them. Similarly in Erskine, II,ix,3, it is observed that "The use, therefore, or exercise of the right is, in servitudes, what Sasine is in a right of lands; which exercise we improperly call possession, and is in the Roman law styled 'quasi possession'". The term "possession" may be used but it is not strictly speaking correct: a servitude is exercised, not possessed. The owner of the servient tenement possesses the land and the owner of the dominant tenement is the user. In the Stair Memorial Encyclopaedia Vol.18, para.120 Professor Reid explains a legal fiction that certain types of such property are capable of being possessed, but that "'possession' in this context has a special meaning; and in the absence of authority it may be suggested that the right is 'possessed' in the sense intended by the statues when it is being exercised. Counsel also referred to Cusine & Paisley on Servitudes and Rights of Way at paragraph 170 and 171 where the generality is stated that as a form of incorporeal property, a servitude has no physical presence and cannot be possessed.

First to Third Defenders

[22 ] On behalf of the first to third defenders Mr Bartos sought a proof before answer. He argued that the second defender was entitled to the protection of section 9(3), with the effect that the pursuers must establish that one or more of the exceptions to the special protection of 9(3) apply. They offer to establish that an inaccurate servitude was created by the carelessness of the second defender's solicitors, which is a matter for proof.

[23 ] He submitted that under section 3(1)(a) of the 1979 Act, the legal effect of registration is that when a real right of ownership in land is obtained, there comes with it is any servitude which forms part of that ownership. A servitude is to be viewed as being part of the ownership which is created through registration. This is in contrast to the right given to a heritable creditor under section 3(1)(b) which does not form part of the ownership but is held quite separately.

[24 ] Section 12 of the Act provides for indemnification for loss arising from rectification or the refusal to rectify, subject to certain circumstances in which indemnity may be excluded. Counsel submitted that the issue of indemnity was critical to an understanding of the Act, and in particular section 9(3). He submitted that the true categorisation of rights appearing on the register is seen in the division between those in respect of which the Keeper grants indemnity and those where he does not. Where he does not, he is permitted to rectify even where the rectification would prejudice a proprietor in possession. That is the link between section 9(3) and section 12(2) and (3).

[25 ] Where indemnity may follow, special protection is given to proprietors in possession. Any inaccuracy is covered by special protection unless it is one which, if rectified, would not give rise to indemnity. Counsel's proposition was that where there is a proprietor in possession, and there is an inaccuracy in that proprietor's title sheet, rectification of which would give rise to a claim for indemnity, the Keeper has no power to rectify, at least where rectification would be prejudicial. In those circumstances the Keeper can only rectify where one of the four listed categories applies. So far as servitudes are concerned, in section 12(3)(l) one of the exclusions of indemnity is where the claimant is the proprietor of a dominant tenement in a servitude, except where it may relate to the validity of that servitude. The policy was to grant indemnity in respect of the validity of the constitution of a servitude which is made real by registration. Given that Parliament has seen fit to legislate that the Keeper will grant an indemnity regarding servitudes created by registration, it would be odd and incongruous were the Keeper to have a power to delete such a servitude from the title sheet of a proprietor in possession.

[26] If a proprietor not in possession suffers a prejudicial rectification for which he is entitled to be indemnified, that entitlement indicates that the right is of sufficient importance in the scheme that, were the proprietor in possession, the Keeper would have no power to carry out the rectification. If the right is one in respect of which the Keeper would not give an indemnity then, in the case of a proprietor not in possession, the Keeper may rectify in respect of that even against a proprietor in possession. That is what comes from section 9(3). The key common feature of the four categories in section 9(3) is that if the proprietor is not in possession, there would be no right to indemnity.

[27 ] In terms of the scheme of the Act there are two categories of right which are entered on the title sheet. The first are rights which, if deleted, will give rise to an indemnity. The Keeper has no power to delete these if there is a proprietor in possession. For a proprietor not in possession, the Keeper can either rectify and pay indemnity or refuse to rectify and pay indemnity to an unsuccessful applicant. The second lesser category is where rectification or refusal will not give rise to an indemnity. So far as a proprietor in possession is concerned, if they have such rights on their title sheets there can be rectification of those rights and there is no claim for indemnity.

[28 ] In considering whether there is a power to rectify under section 9(3), three questions have to be asked:- (1) is there is a proprietor in possession (if not, rectification may follow); (2) if there is a proprietor in possession would that person be prejudiced by rectification? (if not, rectification may follow) and (3) if the proprietor in possession would be prejudiced, do any of the four categories apply? If they do, rectification may follow. If not there can be no rectification.

[29 ] Kaur v Singh established three points:- (1) that the concepts of proprietor and possession are distinct; (2) "proprietor" means an owner of land, a tenant under a long lease and also an owner under udal tenure; (3) "possession" suggests possession of land or other heritable subjects rather than possession of a legal interest. If a person is a proprietor of land which is the dominant tenement in a servitude, and the proprietor is in possession of that land, one does not require to address issues of possession or proprietorship of the servitude. It is enough for the special protection to apply that a person is proprietor of the heritable subjects to which the title sheet relates and in possession of those subjects. One then addresses the question of prejudice which should bear its normal and ordinary meaning, that is to leave somebody less well off. Reference was made to Short's Trustee v The Keeper of the Registers of Scotland 1996 S.C.(H.L.) 14 for the suggestion that prejudice is the incurring of a loss, or rather, that the incurring of a loss is seen as prejudice. So far as the pleadings were concerned, it was not disputed that the second defender was the proprietor of the subjects and in possession of them, nor was it disputed that she would be prejudiced by removal of the yellow strip. It was accepted that three of the four categories do not apply but there was a live dispute over number (iii) which required to go to proof before answer

[30 ] So far as the case of Griffiths was concerned, counsel's submission was that this case was wrongly decided. The fundamental error was that the Tribunal did not approach section 9(3) by asking the questions which counsel has outlined. If they had done so, they would have found that the respondents were proprietors in possession who would be prejudiced by deletion of the servitude. It was an erroneous concession that their undisputed status as proprietors of the dominant tenement did not suffice to give them protection. The combined effect of sections 12(g) and 12(l) together mean that it was also an incorrect concession to say that real burdens include servitudes. Section 12(l) would be otiose if it had been the intention of Parliament that the words "real burden or condition" includes servitudes.

[31 ] In response to these arguments, Mr. Sheldon submitted that the starting and finishing points were to be found in the four corners of the 1979 Act. Definitions of possession based on the distinction between use, user, and quasi possession in civil law terms is not helpful in relation to the particular issue which arises. There is a qualitative difference between possession of a heritable security and possession of land which does not arise in the present case.

[32 ] The terms of section 3(1)(a) are strongly suggestive of rights of a proprietor, referring to a vested right, one of proprietorship. The inclusion of a right to a servitude is of considerable significance. The Act enjoins one to think of the owner of the land as being the owner also of any pertinent or servitude. It is not only natural to think of a servitude as being bundled up with the land, it is built into the structure of the Act. The owner of the land, the dominant or benefited land, is also the proprietor of the servitude and, if in possession of the land, it follows in terms of the Act and natural use of language that he is also the owner in possession of the servitude. Servitudes are woven into the rights to the land both benefited and burdened. They run with the land and affect both tenements. So while they may be separate interests, they are not separable, since by definition they cannot exist separated from the land.

[33 ] The creation of a servitude of necessity, as in the case of Bowers v Kennedy, applies only in very limited circumstances where the properties were formerly in the same ownership and only to the extent of the original right of access, which would create real difficulties in the present case. Inverness Seafield Development Co Ltd v McIntosh 2002 S.L.T.118. From a practical point of view it is easy to figure cases where the original access is simply no longer available or would otherwise be impossible.

[34 ] Mr Kelly, in response to Mr. Bartos, acknowledged there was a division in the Act between rights of indemnity and otherwise but submitted that this was not indicative of the underlying policy of the Act. There is no suggestion that the categories in section 9(3) should have a direct correlation with those in section 12(3). A servitude may be referred to more than once. It is possible for the Court to determine whether, as a matter of law, the concept of the proprietor in possession can apply when the interest is of servitude right of way. If the pursuer is right and the second defender is not a proprietor in possession, then questions of prejudice and exceptions do not arise. If the pursuer is wrong they do.

Subsidiary issues

[35 ] Counsel for the pursuers attacked the sufficiency of specification of the fourth defender's averments about the boundary conflict. Counsel for the fourth defender accepted that there was a degree of valid criticism involved here but submitted that the productions along with the averments more than adequately met the pursuers' point. The diagrams illustrate the way in which the boundaries are said to conflict in a much more helpful way than averments in pleadings would do. To set matters out in the pleadings would be to run the risk of confusing matters further. He gave an undertaking that the plans would be used solely to illustrate the conflicts between the 1993 and 1994 Dispositions and the difficulty in determining the precise location of the subjects referred to on the Keeper's averments at page 32E and for no other purpose, which I understood to settle the issue.

[36 ] Mr. Sheldon accepted the pursuers' argument that no issue under section 12(3)(l) of the Act arose but suggested that issues under (d) and (h) were matters for proof which again I understood to have been accepted.

[37 ] Mr. Bartos also accepted the pleading points made on behalf of the pursuers and presented, without objection, a Minute of Amendment to deal with these. I allowed his pleadings to be amended accordingly. That left pleading arguments on behalf of the first to third defenders, in relation to the conclusions for interdict, which counsel now advanced.

[38 ] Counsel submitted that the averments in relation to interdict as seventh and ninth concluded for were irrelevant and should not be admitted to probation and the interim interdicts should be recalled. He submitted that an interdict is an order for cessation of a specified act or proceeding taking place or about to take place; completed acts will not be prohibited; given the sanctions for breach, the order must be precise; a pursuer must establish reasonable apprehension that the act will take place and the interdict must be no wider than necessary to curb the illegal actings complained of. [Church Commissioners for England v Sears Property 1994 SC 651 at 666; Murdoch v Murdoch 1973 S.L.T. (Notes) 13; Baillie v Baillie 1987 S.C.L.R.1 and Inverurie Magistrates v Sorrie 1956 SC 175.] He submitted that if a pursuer does not have specific averments to allow him to establish that at the raising of the action a wrongful act was taking place or was reasonably apprehended his action must fail, whatever subsequently came to be the case.

[39] Conclusion 7
This is directed against all defenders and in the general part seeks interdict from trespassing or entering on the pursuers' subjects. A blanket prohibition is sought, followed by particular prohibitions against certain types of use and culminating in a prohibition against any other interference. Counsel submitted that each of these individually require specific averment. The second defender's servitude right of access continues to exist until deleted by rectification which has effect only from the time when it is made. MRS Hamilton v Keeper of the Registers of Scotland 2000 S.C. 271. The pursuers therefore cannot demonstrate that when the action was raised there was either an ongoing wrong or a reasonable apprehension that a wrong would be done. The conclusion is not dependent or conditional upon there being rectification in due course. In these circumstances the pursuers' averments about trespass are irrelevant. Furthermore, insofar as they suggest that they have gone on in an area not covered by the servitude, they are lacking specification. The second and third defenders are entitled to know where passage other than across the servitude has taken place. The pleadings do not give the second and third defenders fair notice of when they are offering to prove that the second and third defenders permitted visitors to park. Their position is they have not done so, but they do not know when the pursuers say they did. The pursuers do not specify any basis for a reasonable apprehension that there will be permission given by the defenders for visitors to park in the future. The averments relating to parking are therefore irrelevant. There are no averments in relation to the second and third defenders relating to a fence or similar construction. There are therefore no relevant averments to support conclusion 7 in its general or its specific part.

[40] Conclusion 9

This again is directed against all the defenders and seeks to prohibit placing or erecting on the access roadway any building, wall etc; obstructing so as to impede or hinder the right of free ish and entry by the said access roadway; appropriation of any part of the access roadway for exclusive use; again concluding with a general prohibition against otherwise hindering the pursuers in the exercise of their right.

The averments in relation to the building of a fence etc are insufficient to give rise to a reasonable apprehension that there will be further fences built. The averments from "the pursuers" at page 25B and the two following sentences should be deleted.

[41 ] The averments mentioned so far relate to the second and third defenders. So far as the first defenders are concerned, averments at page 22C relating to walking across regularly and usage of vehicles could give rise to interdict but there is no specification of when this is said to have happened. So far as the fence is concerned there are averments that it remains in place, but no question of building having been recommended. The averments do not disclose ongoing conduct constituting a wrong, or give reason for future apprehension. There are no averments regarding parking or of general interference.

[42 ] In reply, counsel for the pursuers agreed with the general propositions advanced for the defenders but submitted that in addressing these propositions the defenders had not concerned themselves with the issue of a continuing wrong. Counsel disagreed with the proposition that even at a proof, one had to look back and see what the situation was at the raising of the action. It is appropriate to read the conclusions and the averments in support of them as a whole and not take every sentence in isolation. The individual averments are part of the whole complaint. In Article 7 the first sentence deals with a general introduction which lead into specific averments about regular activity. The words "have brought" implies regularly and this is clear from the context. There are averments that they were "repeatedly" advised and requested to desist. The fence is incomplete. This must be read as a whole as containing averments which support the seventh conclusion in relation to the first defender.

[43 ] Whilst there could have been conclusions against each of them separately, there are not. There is a general prohibition from trespassing and entering and there then follows - without prejudice - certain instances of trespass which have allegedly taken place. Not all have been practised by each defender. Indeed not all objectionable activity is listed but the examples all constitute - in the conclusion and the averments - trespass on the subjects. Reference was made to Hampden Park Limited v Dow 2002 S.L.T. In the conclusion the general is followed by the particular in the form of examples and this is a perfectly valid way of framing an interdict conclusion. The averments show that there has been trespass and it is not necessary to say that every instance is going to happen again. The Hampden Park case concerned bollards which had already been erected but the wrong was continuing and was within the control of the defenders, as in the present case. The fence in one sense is a completed act, but in another it is a continuing wrong since it is in the control of the defenders. There is an admission that they have maintained in place the fence which they were erecting in 1999. The structure of conclusion 7 is valid and is supported by relevant averments in Article 7 and the defenders' preliminary pleas should be repelled.

[44 ] Counsel described the argument that since the second defender had title at present it was not possible for the pursuers to seek interdict as an "astonishing" proposition. The pursuers plainly aver that the servitude should never have been granted and that it was granted after the land was disponed away to the pursuers. The pursuers are entitled to raise an action for rectification and at the same time seek permanent interdict. Clearly if they fail in rectification and title is confirmed they will not be able to get an interdict other than insofar as it relates to misuse of the servitude. It is common to plead in this way, for example seeking decree of removal with interdict to prevent return. Conclusion 9 relates to the access road. It was not in dispute that the defenders fenced off part of the route. There are ample, admitted averments which would support conclusion 9 if the pursuers are correct that there was no agreement. The point again arises, as in Hampden Park v Dow that it is a continuing wrong. Buildings have been put in place, there has been appropriation, but it does not preclude interdict since the structures are within the continuing control of the defenders.

[45 ] So far as the concluding part of each conclusion is concerned, counsel accepted that if these averments stood alone they would indeed be too imprecise. They are in the context however of a general prohibition followed by examples which give colour to this part of the conclusion. It is not unknown to end with a catch-all which falls to be interpreted in the context of what has gone previously. Phrases such as this, coming at the end of a list, would cause little difficulty in interpretation.

Discussion and decision

[46 ] The second defender is the heritable proprietor of, and in natural possession of, the property known as "The Stables" the registered Title Sheet to which is number FFE19065. The servitude appears in the property section of that title sheet and it is that title sheet the pursuers seek to have rectified, by deletion of the servitude. In my view the second defender is a proprietor within the meaning used in Kaur v Singh as "an owner of land who is in possession". The fact that a servitude is capable of forming a separate interest in land is beside the point: it is the second defender's ownership of the benefited land which is the critical issue. As the owner in possession of land which is benefited by a servitude she is a person who may be prejudiced by its removal and in my opinion she comes within the category of a "proprietor in possession" for the purposes of section 9(3). Such an interpretation is consistent with the principle behind section 9(3) that an innocent registered proprietor who is in possession should not be disturbed in that enjoyment save in very limited circumstances.

[47 ] It is not therefore necessary to consider the extent to which one may truly be said to be the proprietor, or possessor, of a servitude. On this matter I would in any event have preferred the argument advanced for the fourth defender. As the person registered as entitled to the interest in "The Stables" there is vested in her, by virtue of section 3(1)(a) of the Act, a real right in and to that interest and in and to any right, pertinent or servitude forming part of that interest. The servitude is part of that interest in land. She is proprietor of her whole right and for these purposes that includes the servitude. The servitude is not in any real sense separate from the main interest. The concept of a servitude of this kind as intrinsic to the rights of the proprietor of the dominant tenement clearly does not apply to a heritable security which does not run with the land in the same way. A heritable security is a separate interest which does not depend to any extent on possession of the land in question. The second defender cannot in my view simply be considered to be someone who possesses the servitude as a separate interest in land in the way of the holder of a heritable security. Possession of the dominant tenement, along with use of the servitude adhering it, is sufficient possession for the purpose of section 9. It seems entirely in keeping with the policy of the Act that a servitude necessary for the enjoyment of the land should attract the protection of section 9(3).

[48 ] It follows that I have to disagree with the reasoning of the Lands Tribunal in Griffiths v Keeper of the Register of Scotland. I take the view that, as a result of the concession made to them, the Tribunal paid insufficient regard to the fact that a servitude runs with the land. It was a matter of agreement that the servitude was not necessary for the enjoyment of the land and the situation was not one where "a right of access might be an essential part of the physical subjects". As I understand it, it was essentially a right of parking and is different in nature for the present case where it was agreed that removal of the servitude would very likely lead to the second defenders having to attempt to rely on a servitude of necessity. Moreover, the comfort which the Lands Tribunal draw at page 28 from their interpretation of section 12(3)(g) seem erroneous. Their conclusion that it would be consistent with the policy of the Act that there should be no special protection for a proprietor in possession under section 9(3) where no indemnity would be available, seems to be at odds with the passage at page 190G-H in Kaur. In any event, it does not seem to have been pointed out to the Tribunal that section 12(3)(l) would be capable of covering the situation, and in my view does, for the reasons advanced by Reid & Gretton at pages 90 to 91 of Conveyancing 2003. Insofar as the Tribunal considered that their decision was validated by the view they took of section 12(3)(g), I cannot agree with them.

[49 ] So far as pleading issues are concerned, I note that at page 22 in support of conclusion 7 there are averments of daily trespass, daily use of the route to enter, leave and take vehicles over it and daily taking of vehicles to the parking area by the owners and by visitors. There are no averments about future threats to build fences etc but there are allegations that the first defenders did not stop building a fence despite being told to do so until they had it partially built, which in my view is sufficient averment to inform the prohibition sought. In the context of the ongoing dispute I consider it is enough that the conclusion be drafted this way, even though there is reference to "the defenders" in the preamble. Regarding conclusion 9, there are averments in relation to the placing of boulders and a fence and of appropriation. The fact that these constitute partially completed acts does not mean that they are irrelevant to instruct an interdict since their maintenance can be sufficient to explain any apprehension felt. The concluding general prohibition sought is supported by the generality of averments in support of the conclusion as a whole. It is clear, reading the conclusion and the pleadings what actions on whose part the pursuers seek to inhibit. This is a perfectly acceptable way of drafting a conclusion by generality followed by more particular examples.

[50 ] Dealing with the point that the second defenders have a valid servitude until the title is rectified, it is clear that the pursuers seek interdict to follow from the other conclusions. They present a valid prima facie case in favour of rectification. They rely on the past actings to show reasonable apprehension of future similar actings, which would be a wrong on rectification. There is then simply an issue of whether in all the circumstances interdict should be granted. At this stage I am looking at the sufficiency of the averments about these matters and I conclude that the case made by the pursuers is a relevant one.

[51 ] In all the circumstances I therefore conclude that the second defender is a proprietor in possession for the purposes of section 9(3) of the Act. I will repel the second and third pleas in law for the first, second and third defenders and quoad ultra allow a proof before answer.

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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Yaxley & Anor v Morrison or Glen & Ors [2007] ScotCS CSOH_90 (30 May 2007) URL: https://www.bailii.org/scot/cases/ScotCS/2007/CSOH_90.html Cite as: [2007] CSOH 90, [2007] ScotCS CSOH_90

Scottish Court of Session Decisions

Pursuers