Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 138
A70/11	OPINION OF LADY CLARK OF CALTON in the cause SIR CHARLES CHRISTIAN NICHOLSON and OTHERS (THE TRUSTEES OF NIALL CALTHORPE'S 1959 DISCRETIONARY SETTLEMENT) Pursuers; against (FIRST) G. HAMILTON (TULLOCHGRIBBAN MAINS) LIMITED and (SECOND) THE KEEPER OF THE REGISTERS OF SCOTLAND Defenders: ________________

Pursuer: Martin, QC, McLean; Turcan Connell

Defender: Reid, QC; Gillespie MacAndrew

24 August 2012

Summary

[1] This action arises out of problems relating to conveyancing documents which purport to convey what I call for the purposes of this opinion "the disputed land". To assist understanding, the area of disputed land is represented as the areas coloured green A and B in 12/14 of process.

[2] An issue about title to the disputed land is stated on the face of the land certificate (12/11 of process) but the issue has hitherto remained unresolved. The title number INB 21845 gives the date of registration as 18 March 2008 in name of the first defenders. There is a note in the land certificate to the effect that the Trustees named therein, whom I understand to be the pursuers, also have title to the subjects known as Tullochgribban Quarry, edged red on the title plan, by virtue of the 1991 disposition referred to in the land certificate. Indemnity is excluded in respect thereof in terms of Section 12(2) of the Land Registration Act (Scotland) 1979 in the terms recorded in the land certificate.

[3] The pursuers in the present action seek to resolve the dispute about title to the disputed land in their favour by production and reduction of the disposition dated 29 February 2008 and registered in the Land Register of Scotland on 18 March 2008 in favour of the first defenders and an order ordaining the second defender thereafter to rectify the title sheet in the Land Register for the disputed land.

[4] The action is defended only by the first defenders. The second defender has not entered appearance. The first defenders have defences which include a general plea of relevancy in which they seek inter alia to persuade the court to dismiss the action of the pursuers.

[5] The case called before me for a hearing on the procedure roll. The submissions by counsel for the parties relating to the main issue, the title to the disputed land, were based on construction of a number of different dispositions. The first defenders had a subsidiary submission relating to relevancy of the pursuers' averments about prescriptive possession in relation to the quarry area that is area B of 12/14 of process. As the discussion on procedure roll developed the pursuers' pleading problems became apparent. It was agreed by counsel for the parties that I should deal with the main issue only.

Productions

[6] There was no attempt in this case by the parties to produce a joint folder of documents relevant to the issues in historical order prior to the hearing. I regard this as unhelpful in a case such as this. At my request, parties considered their productions and put together a joint inventory of productions in historical order. This deals with all the dispositions and plans to which I was referred and also other documents which may be relevant to the history. The joint inventory of productions is 13 of process. There was no formal agreement by joint minute about the status of the productions.

The closed record

[7] I intend to make little reference to the closed record (10 of process) because I do not consider that the pleadings assist in focusing the dispute. In particular, reference is made by the pursuers to proceedings in the Scottish Land Court under the Agricultural Holdings (Scotland) Act 2003. At page 7 of the closed record the pursuers incorporate into the pleadings the order of the Scottish Land Court dated 13 August 2010 and associated note. That document (13/18 of process) is a document of 285 paragraphs and 65 pages which deals with many varied factual and legal issues. The pursuers' pleadings in the present case make no attempt to focus the relevancy of any of this to the present case. I regard this method of pleading as totally unacceptable. Nor do I consider that it becomes acceptable merely because the first defenders, for their own purposes, were slow to criticise this method of pleading. The pleadings are designed to give fair notice of the facts and legal issues which are in dispute. These pleadings do not achieve that. Pleadings in Scotland are designed to focus the issues, not obscure them.

[8] Senior counsel for the pursuers, in his response to submissions by senior counsel for the first defenders, acknowledged that there were deficiencies in the pursuers' pleadings which would require amendment. He accepted that amendment was required in particular to focus the averments of the pursuers about prescriptive possession.

[9] It was not in dispute by senior counsel for both parties that there were a number of documents which required to be construed by the court. That exercise was not dependent upon the pleadings. The pursuers' position on record should however be noted. At page 6 of the pleadings in the closed record, the pursuers claim to have a habile title. Their case as pled and supported by the first plea in law is a case of habile title supported by prescriptive possession.

[10] It was agreed by counsel for the parties that as the court had heard submissions about the construction of the documents which bore upon the dispute, it would be helpful to the resolution of the dispute if the court gave an opinion about the interpretation of the relevant dispositions and plans.

The dispositions and plans

[11] I set out below the details of the dispositions and plans. In summary, the submissions focused on dispositions and plans dated 1967, 1968, 1977, 1991 and 2008.

Submissions by senior counsel for the first defenders

[12] The written note of argument is 11 of process. Written outline submissions are 14 of process. Senior counsel summarised the first defenders' case. He submitted that on a proper construction of the relevant dispositions on which the pursuers rely as the basis for prescriptive possession which is the foundation of their case on record, the disputed land has been excluded from the land conveyed to them or their predecessors. If this submission is correct, it follows that the pursuers' case is ill founded as a matter of law. Accordingly the pursuers' pleas should be repelled and the action dismissed.

[13] Before looking in detail at the various dispositions, counsel set out the legal framework. He submitted that the dispositive clause of a disposition is critical. It is the ruling clause and, if clear and unambiguous, it is the measure of the grant of the subjects conveyed and cannot be controverted, either to extend the grant or restrict it by other clauses or declarations which are or may be inconsistent with it. He referred to JM Halliday, Conveyancing Law and Practice, 1^st Ed (Vol. 1), paragraph 4.26 and Vol. 2, paragraph 17.08, 18.09, 21.06 and 22.04. Paragraph 4.26 states:

"The conclusive quality of the dispositive clause in convenyances of land is not affected by the provisions of other clauses, even although these may indicate that the intention of the grantor has not been accurately effected in the dispositive clause".

Counsel prayed in aid Cooper Scott v Gill Scott 1924 SC 309, the Lord Justice Clerk at page 330 and Lord Skerrington at page 334. Reference was also made to Gordon, Scottish Land Law, 3^rd Edition (Vol. 1), pages 358 to 361 in particular paragraph 12.35 where it is stated:

"Conversely, where the title cannot include the subjects in dispute, no length of possession can give right to the interest claimed, such as ownership. This situation may arise where exact boundaries are specified and these do not include the subjects claimed; it may also arise where there is a more general description containing elements of limitation, for example the parish, district or county in which the lands lie."

[14] Counsel submitted that where a title is a bounding title, that is where the boundaries are delimited, for example by measurements, description, specification, a plan or some combination of these, there is no scope for relying on prescriptive possession to acquire title to an interest in land lying beyond these boundaries. He referred to Johnston, Prescription and Limitation, pages 273, 288-293. He submitted that the title on which the pursuers rely to found prescriptive possession is an example of a bounding title and thereafter the general principles apply.

[15] He submitted that it is also not possible to rely on prescription if an area of land is expressly excepted from a grant. Counsel accepted that in order to identify what area of land is excepted, it may be necessary to examine deeds referred to in the dispositive clause which form part of a description by reference. He referred to North British Railway Company v Hutton 1896 23 R 522 which was approved by Lord Eassie in Royal & Sun Alliance Insurance v Wyman-Gordon Limited 2001 SLT 1305. In Royal & Sun Alliance, the primary dispute was whether the disposition constituted a bounding title. In paragraph 24, Lord Eassie states:

"It is in my view perfectly competent to create a bounding title stricto sensu by express reference to the title of a neighbouring property where that title contains, as such, a bounding description in that sense."

And having referred to the North British Railway case, Lord Eassie at page 1310, par. 24 approves the statement of Lord McLaren, with which opinion the other members of the court concurred to this effect:

"Now when the grantor of a conveyance says, 'I except from this conveyance so many fractional parts of an acre previously conveyed and delineated in a plan annexed to that conveyance', I think that, so far as relates to the bounding line which separates the area first and second conveyed, he has just as clearly defined the boundary as if he had defined it by reference to march stones or natural landmarks. I see no distinction between the cases; the principle is one and the same, that you cannot by long possession acquire a subject which your title deed in terms excludes or declares to be the property of a co-terminus proprietor."

[16] Counsel invited me to look in detail at the disposition and plans dating from 1967, 1968, 1977, 1991 and 2008. He submitted that there was a clear title to the disputed land in the 2008 disposition in favour of the first defenders, under exception of the minerals which were conveyed in the 1967 disposition. He submitted that it was plain that the 1968 disposition did not convey the disputed land because the disputed land was not coloured pink on the plan and in any event the disputed land was expressly excluded in terms of said disposition. He submitted that the 1977 disposition was internally inconsistent and self destructive. In relation to the 1991 disposition he submitted that the 1991 disposition conveyed what was disponed in the 1977 dispositive clause and therefor had the same difficulties because the disposition was internally inconsistent.

[17] In conclusion, counsel submitted that taking into account the general principles to which he had referred, on a proper construction of the 1991 disposition on which the pursuers base their claim on record, it is plain that said disposition neither conveyed nor was habile to convey the disputed land. The issue of prescriptive possession therefor did not arise.

Submissions by senior counsel for the pursuers

[18] Senior counsel introduced his submissions by focusing on the 2008 disposition which the pursuers sought to reduce. He submitted that the disposition does not identify the interest which is being conveyed. The question to be determined is what is disponed by said disposition. He pointed out that when the 2008 disposition was registered in the Land Register it was noted that "the minerals including deposits of sand and gravel are excepted" (12/11 of process). He submitted that whatever the first defenders have obtained under said disposition from the Earl of Seafield, there is a competing title under the 1991 disposition. When construing the title deeds, it is necessary to bear in mind that there may be separate interests in land such as mineral rights and the dominium utile of the solum.

[19] In his second chapter, counsel considered the 1967, 1968, 1977 and 1991 dispositions. He accepted that the 1991 disposition referred back to the 1977 disposition and plan. Under reference to Johnston, Prescription and Limitation (1999), page 272, counsel submitted that it may be a question of construction as to what "interest" (or as to what real right) in land the deed constitutes a title. He made reference, as an example, to an interest in land in the dominium utile or a superiority. Various other examples are given by Johnston in paragraphs 15.42 to 15.47.

[20] Senior counsel then referred to Auld v Hay (1880) 7 R 663, the Lord Justice Clerk at p 668; Cooper's Trs. v Stark's Trs. (1898) 25 R 1160, Lord McLaren at 1167; Troup v Aberdeen Heritable Securities and Investment Company Ltd 1961 SC 918 Lord Dundas at p 924; and Nisbet v Hogg 1950 SLT 289 in particular the opinion of Lord Russell. From these cases he submitted that there were a number of general principles which were not novel and on which he relied. He referred to the general principles about the quality and effect of uninterrupted and exclusive possession for the prescriptive period. Such possession was sufficient to exclude all enquiry in circumstances where the disposition contained a description which can be so construed as to embrace the whole lands (even although it may also be so construed as to embrace part of them only) provided the title is susceptible of the meaning put upon it, or if it can be read in a manner consistent with the possession which has followed upon it. If that is the case enquiry into antecedent titles is excluded.

[21] In conclusion, counsel submitted that the 1991 disposition, with its reference to the plan in the 1977 disposition, gives a habile title which may be fortified by prescription. He accepted that it was a matter for proof as to whether or not the pursuers had established prescriptive possession.

[22] Counsel further submitted that the pursuers might succeed and the defences should be repelled if a construction of the 1968 disposition was made in a way favourable to the pursuers' case. This was a novel submission about which no notice had been given on record and there was no plea in law by the pursuers in support of it. Senior counsel for the first defenders generously stated he was prepared to deal with the submission, reserving his position about expenses. I permitted the submission to be developed.

[23] Counsel for the pursuers submitted that it was proper to construe the 1968 disposition as conveying only minerals. If that was correct, the pursuers would be entitled to succeed and that interpretation would be consistent with the provisions in later titles and warrandice which had been granted. On that construction the pursuers would be entitled to succeed and the defences repelled.

Discussion

[24] It was not disputed in this case that relevant prescriptive possession as a matter of principle could cure a bad or defective title thus creating a right of ownership to the disputed land in favour of the pursuers. It was accepted that there required to be a habile title. The issue of what is a habile title is considered in Auld v Hay. The Lord Justice Clerk stated at page 668:

"A habile title does not mean a charter followed by sasine, which bears to convey the property in dispute, but one which is conceived in terms capable of being so construed. The terms of the grant may be ambiguous, or indefinite, or general, so that it may remain doubtful whether the particular subject is or is not conveyed, or, if conveyed, what is the extent of it. But, if the instrument be conceived in terms consistent with and susceptible of a construction which would embrace such a conveyance, that is enough, and 40 years possession following on it will constitute the right to the extent possessed."

The court in Auld v Hay were of course considering a particular title and the rules of prescription in 1880. The ambiguity related to the meaning of the word "shares" in the title and this was considered to be habile to the conveyance of the whole property. Indeed the Lord Justice Clerk at page 668 appears to reject the submission that the use of the word shares must indicate a part only of the whole. What is clear from the case is that the disposition must be susceptible to a construction consistent with the right of title to the disputed land. That question depends on a construction of the relevant deed or deeds. It is not determined by the extent of the prescriptive possession. Lord Deas at page 692 states:

"It is not necessary, in my opinion, that a party who pleads prescription should produce a title which ex facie comprehends everything he claims under it. If its terms be such as may comprehend the whole, and prescriptive possession of the whole has followed, that is sufficient. ... Of course if the disputed subjects cannot be claimed without contradicting the terms of the prescriptive deed, as in the base of a bounding charter, no length of possession can establish that claim."

Lord Deas considers that the charter in Auld v Hay is a bounding charter and he considered that to be favourable in the circumstances to the defender. Much of the discussion in Auld v Hay however appears to be concerned not with bounding titles but with the effect of prescription when there is ambiguity about parts and pertinents and fishing.

[25] I do not consider that Nisbet v Hogg and another is of assistance to the pursuers. In that case the subjects were conveyed in a disposition dated and recorded in 1929 in which specific reference was made to a triangular area of ground at a particular location which was the disputed area in that case. The 1929 disposition then narrated that the said subjects were described in a prior disposition dated 1921 but the disposition in 1921 contained a dispositive clause which made no reference to the triangular piece of ground. It was held (Lord Carmont dissenting) that the pursuers' title was not bounding quoad the piece of ground in dispute and if followed by the appropriate possession for the descriptive period, was sufficient to confer upon the pursuer a good title to the disputed land. The pursuers contended that the title was properly to be understood as a bounding title but the Lord President did not accept that and his reasoning is set out at page 294. He considered that there was an ambiguity created by the unfortunate phrasing of the dispositive clause. Lord Russell in considering the matter stated at page 294:

"In my opinion the rule that a title to lands described by a bounding description is not a habile title to prescribe by exclusive possession a right to lands beyond the specific bounds is no more than a particular case of the more general rule that an owner cannot prescribe in a sense inconsistent with his title."

He took the view that there was not an inconsistency, in that the triangular area, was included expressly as parts and pertinents of the subjects. He was of the opinion:

"That the clause of parts and pertinents is susceptible of a meaning which is inconsistent with the description of the principal subjects being interpreted as confined with inflexible boundaries; and it is also susceptible of the meaning which is consistent with the actual exclusive possession of the pursuer and his offer."

He considered that the issue depended upon the reasonable construction to be given to what he considered to be an inappropriately worded title.

[26] In my opinion it is plain that the dispute in the present case can only be resolved by an understanding and construction of the various dispositions and plans. I turn now to consider the various documents which appear to me to relate to title in one way or another to the disputed land. I consider that a critical question to be addressed is whether any title relied on by the pursuers is capable of bearing a construction that the pursuers have title to the disputed land.

The 1967 disposition and plan
[27] The 1967 disposition is a disposition by Viscount Reidhaven to George MacWilliam & Son (Contractors) Ltd recorded GRS 6 July 1967 with a plan relative to said disposition (12/1 and 12/2 of process). It is stated in the 1967 disposition that Viscount Reidhaven as heritable proprietor sold and hereby dispones ...

"ALL and WHOLE the whole deposits of sand and gravel ... situated in, on and under that area of ground at Tullochgribban lying to the north of the main road from Carrbridge to Dulnain Bridge in the Parish of Duthil and Rothiemurchus and County of Inverness all as delineated and coloured red on the plan annexed and signed as relative hereto which plan is declared to be demonstrative only and not taxative ...".

The plan 12/2 of process shows an area of land delineated and coloured red which is the disputed land.

[28] In my opinion the 1967 disposition by Viscount Reidhaven does not include all interests in the disputed land but was limited to the mineral interests as defined in said disposition. It follows therefor that Viscount Reidhaven, as owner, had the ability to dispone other interests such as the dominium utile (excluding said minerals) if he so wished at some later date.

The 1968 disposition and plan

[29] The 1968 disposition is by Viscount Reidhaven to Niall Hamilton Anstruther-Gough-Calthorpe recorded GRS (Inverness) 1 November 1968 (12/3 of process). In the 1968 disposition, Viscount Reidhaven dispones:

"ALL and WHOLE those lands and others lying partly in the County of Inverness and partly in the County of Moray extending to six thousand eight hundred and twenty one acres or thereby Imperial Measure delineated in red and coloured pink on the plan annexed hereto ... DECLARING for the sake of clarity that there is excepted from the subjects hereby disponed that area of ground at Tullochgribban in the Parish of Duthil and Rothiemurchus and County of Inverness described in and delineated and coloured red on the plan annexed and subscribed as relative to the Disposition granted by me in favour of George MacWilliam & Son (Contractors) Limited dated twenty April and recorded in the said division of the General Register of Sasines for the County of Inverness on sixth July both in the year nineteen hundred and sixty seven ..."

[30] The disposition of land of 6,821 acres includes various rights including mineral rights under the subjects disponed (excepting only coal and mines of coal vested in National Coal Board) and includes various heritable and irredeemable servitude rights. Certain reservations are made commencing at page 2 of said disposition. Then at page 4 there is a further declaration about what the subjects include in respect of rental and scheduled feu duties. That is stated to be without prejudice to the general description of the subjects hereby disponed hereinbefore written. Within the schedule at page 8 there is reference at item 18 to the Mains of Tullochgribban. Senior counsel for the pursuers submitted that these references were significant to the construction.

[31] In my opinion, the dispositive clause describes the lands conveyed by reference to the plan delineated in red and coloured pink all as stated at page 2 of the 1968 disposition. The plan is 12/4 of process. The reference to the rental and schedule of feu duties at page 5 is made "without prejudice to the general description of the subjects hereby disponed hereinbefore written". It is further stated that the disponee and his foresaids shall have the full benefit both of the said general description and of the said rental and schedule of feu duties ... each without prejudice to the other. I cannot interpret this reference to the feu duties as extending in some way the boundaries set out in said plan. The question is whether the disputed land is included in the boundaries delineated in red and coloured pink in the said plan.

[32] The said plan (12/4 of process) relates to a large area of land coloured pink. The disputed land is plainly not coloured pink on said plan. I consider that there is only one conclusion to be drawn. That is that the disputed land was not part of all and whole those lands disponed by the said 1968 disposition. The terms of the disposition, which includes the declaration for the sake of clarity at page 2, also makes that plain in my opinion. Even if that exception was capable of being interpreted as a reference only to the minerals, which I find difficult to accept, the plan is perfectly plain and does not include the disputed land. I also note that the declaration for the sake of clarity refers not to minerals but to "that area of ground at Tullochgribban" under reference to the plan annexed to the 1967 disposition. The reservations at page 4 which relate to rights conveyed in favour of George MacWilliam and Sons appear to relate to the mineral rights as that was what was conveyed. But in my opinion the terms of the dispositive clause are clear and this reservation cannot extend the dispositive clause.

[33] For whatever reason, I consider that the disputed land was not included in the disposition of 1968. Whether or not there would be a valid claim to rents and feu duties relating to the disputed land in favour of the disponee is not a matter about which I am asked to decide. If there was such a right, that right is stated not to be dependent on the ownership of the disputed land as between the disponer and the disponee.

[34] In my opinion the pursuers cannot succeed relying on succession in title to the disputed land on the basis of the 1968 disposition. I therefor reject the submissions by senior counsel based on the 1968 disposition. In any event these submissions are not reflected in the closed record.

The 1977 disposition and plan

[35] The 1977 disposition is a disposition by Lady Nancy Moireach Anstruther-Gough-Calthorpe and others as Trustees in favour of Lord Luke and others as Trustees under Sir Richard Calthorpe's Trust recorded GRS (Inverness) 21 October 1977 (12/5 of process). This disposition dispones a number of areas of ground. In the second place it dispones:

"ALL and WHOLE that area of ground lying partly in the County of Inverness and partly in the County of Moray delineated in red and coloured pink on the said plan annexed and subscribed as relative hereto ... and which said last mentioned area of land is part and portion of all and whole those lands and others in the said counties extending to six thousand eight hundred and twenty one acres or thereby Imperial Measure delineated in red and coloured pink on the plan annexed and subscribed as relative to the Disposition granted by Ian Derek Francis Ogilvie-Grant-Studley-Herbert, Viscount Reidhaven in favour of Niall Hamilton Anstruther-Gough-Calthorpe dated twenty fourth September and recorded in the Division of the General Register of Sasines for the counties of Inverness and Moray for 1 November both in the year nineteen hundred and sixty eight ..."

[36] Said plan which is subscribed as relative (12/5 of process) shows a large area delineated in red, part of which is coloured pink. The pink area on said plan includes the disputed land. It should be noted, however, that the disponed land defined by the plan 12/5 of process to include the disputed land is said and described to be part and portion of the land disponed in the 1968 disposition by reference to the 1968 Plan (12/4 of process). In my opinion, however, it is not part and portion of said land disponed in 1968 for the reasons I give when I consider the 1968 disposition and plan.

[37] Counsel for the first defenders submitted that the dispositive clause in the 1977 disposition was internally inconsistent. He submitted that this was not an example of ambiguity. The problem with the dispositive clause was fundamental and should properly be interpreted as provisions which were self destructive. I agree with that analysis. In my opinion it is impossible to make sense of the dispositive clause in the 1977 disposition as the description is totally contradictory. The disputed land is included in the 1977 plan but not included in the 1968 plan. This does not make sense.

The 1991 disposition
[38] This is a disposition by the Trustees of Sir Richard Calthorpe's Trust in favour of the Trustees of the main Calthorpe settlement recorded GRS (Inverness) on 6 November 1991 (12/8 of process). The dispositive clause which commences at page 2, states at page 4:

"(In the Second Place) ALL and WHOLE that area of ground lying partly in the County of Inverness and partly in the County of Moray being the subjects more particularly described in and (In the Second Place) disponed by and delineated partly in solid red lines and partly in pecked red lines and coloured pink on the said plan annexed and subscribed as relative to the said Disposition by said Lady Nancy Moireach Anstruther-Gough-Calthorpe and others as Trustees therein mentioned in favour of Lord Luke and others as Trustees under Sir Richard Calthorpe's Trust dated and recorded as aforesaid under exception of that area of ground delineated in black and coloured pink ..."

I understand that it is not disputed by the parties that "the recorded as aforesaid" is a reference to the said 1977 disposition. The exception relates to a small area of ground referable to road widening purposes which parties were not presently interested in.

[39] It should be noted that the narrative description to the plan which is narrated in the 1991 disposition is slightly different from the narrative description of the plan in the 1977 disposition. The 1977 disposition refers only to an area delineated in red and coloured pink on the said plan. The 1991 Disposition refers to subjects "delineated partly in solid red lines and partly in pecked red lines and coloured pink on the said plan". That description matches better what is to be seen on the said 1977 plan as there are both solid red lines and pecked red lines. The disputed land appears as part of the land coloured pink on the 1977 plan bounded by solid red lines.

[40] As I understand the pursuers' submission, this plan reference in the 1991 Disposition provides the basis of title on which they rely to found prescriptive possession.

[41] In considering this, I ask whether what is being conveyed in the 1991 disposition is what was disponed (in the second place) in the 1977 disposition or whether something different is being disponed in the 1991 disposition and that something different is capable of being interpreted as including the disputed land.

[42] I have considered very carefully the wording of the 1991 disposition. It is not easy to follow and construe. No one could describe it as clear. The 1991 disposition firstly dispones a number of areas of ground with which we are not concerned in the present action (page 3). Said areas of ground (the subjects) disponed are described by reference to two plans, one of which is the plan annexed to the 1977 disposition (pages 3 to 4). Thereafter there is disponed:

"(in the second place) ALL and WHOLE that area of ground lying partly in the County of Inverness and partly in the County of Moray being the subjects more particularly described in and (in the second place) disponed by and delineated partly in solid red lines and partly in pecked red lines and coloured pink on the said plan annexed and subscribed as relative to the said Disposition by the said Lady Nancy Moireach Anstruther-Gough-Calthorpe and others as Trustees therein mentioned in favour of Lord Luke and others as Trustees under Sir Richard Calthorpe's Trust dated and recorded as aforesaid."

That in my opinion is plainly a reference back to the said 1977 Disposition which was recorded on 1 October 1977.

[43] It should be noted that within the 1991 disposition, there is reference to other deeds about which I was not addressed. The assumption by the parties appears to be that these are not relevant to the untangling of the problems in the present case.

[44] As I interpret the 1991 disposition what is being conveyed are subjects "more particularly described in and in the second place of the 1977 disposition". That takes us back to the words used in the 1977 disposition which I have discussed earlier in this opinion. In my opinion, the description in the 1977 disposition makes reference to two self contradictory plans using the words "... the subjects more particularly described in and (in the second place) ..." and incorporates the same contradiction into the 1991 disposition. If the 1991 disposition had referred only to the plan which attaches to the 1977 disposition, my conclusion would be different. I do not consider however that one can read a verbal description, which is incorporated by reference to the two contradictory plans, as if that verbal description did not exist in the disposition. In my opinion it is not possible merely to delete or ignore these words and rely on the reference to the plan attaching to the 1977 disposition. If such a construction was possible, then in my opinion by reference to the plan in the 1977 disposition only, there would be a foundation in the 1991 disposition to give title to the disputed land on the basis of the boundaries in the 1977 plan. As I have explained however I do not consider that would be a reasonable or legitimate construction.

The 2008 disposition

[45] This is a disposition by the Earl of Seafield (formerly Viscount Reidhaven) to the first defenders dated 29 February 2008 (12/8 of process). This disposition dispones to the first defenders:

"ALL and WHOLE that area of ground at Tullochgribban lying to the north of the main road from Carrbridge to Dulnain Bridge in the Parish of Duthil and Rothiemurchus ... the said area of ground ... delineated and coloured red on the plan annexed and signed as relative to the Disposition granted ... in favour of George MacWilliam & Son (Contractors) Limited dated twenty first April and recorded in the Division of the General Register of Sasines applicable to the County of Inverness on sixth July both months in the year nineteen hundred and sixty seven, but excepting therefrom the deposits of sand and gravel and others as they are more particularly described and disponed in said last mentioned disposition."

In my opinion said disposition dispones to the first defenders the disputed land under exception of the mineral interests. Warrandice was granted to the first defenders.

[46] I consider that all the titles which I have looked at are properly described as bounding titles based on a particular description and plan.

Conclusion

[47] In my opinion the pursuers do not have a valid title to the disputed land if the titles are traced back to the various dispositions. The pursuers also do not have a title habile to the disputed land which can be fortified by prescription. The first defenders have a valid title based on the 2008 disposition.

[48] I appoint the case to the By Order roll to be addressed by counsel about the future disposal of the case.