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OUTER HOUSE, COURT OF SESSION
[2007] CSOH 90
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A566/04
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OPINION OF LADY
DORRIAN
in the cause
MARK YAXLEY AND
ANOTHER
Pursuers;
against
MRS SHARON
ROE MORRISON or GLEN and OTHERS
Defenders:
ญญญญญญญญญญญญญญญญญ________________
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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-เ-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.
