Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2013] CSOH 138
A264/11	OPINION OF LORD BANNATYNE in the cause PAUL MOTION & MRS ELAINE MOTION Pursuers; against WILLIAM BINNIE & MRS CHERYL WEATHERLY BINNIE Defenders: ________________

Pursuer: Brown, bto

Defender: Jamieson, Francis Gill & Co (for Thompson & Brown, Glasgow)

21 August 2013

Introduction

[1] This case came before me for a procedure roll discussion in terms of the pursuers' first plea in law which was a general plea to the relevancy and specification of the defenders' pleadings.

Background
[2] In this action the pursuers sought two remedies:

(a) Interdict of the defenders or anyone acting on their behalf or on their instructions from carrying out or seeking to carry out any works, depositing any material, cutting or removing any vegetation or otherwise seeking in anyway to alter the condition of the heritable property owned by the pursuers at S K Farm, being:

(1) The east cottage.

(2) The west cottage.

(3) The paddock.

(4) The strip of land immediately behind and northeast of the east and west cottage all as more fully described in the Land Register for Scotland title numbers as set out in the conclusion.

(b) Interdict of the defenders or anyone acting on their behalf or on their instructions from carrying out any works to, or placing any obstruction, whether permanent or temporary, upon, or otherwise doing any act liable to interfere with or inhibit the pursuers' servitude right of access to the subjects described in the first conclusion by way of the farm road running approximately northeast between the said subjects and the public road ("the road running northeast"), all as more fully identified in the Land Certificates as set out in the first conclusion.

The general scheme of the title
[3] Given the centrality of the parties' title to the discussion which I heard, it is perhaps convenient at this stage to set out the general scheme of the title.

[4] The pursuers and the first defender own adjoining properties which were originally part of the farm and estate of K. The pursuers are registered proprietors of subjects carried by four separate titles; the east cottage; the west cottage; the back strip; and the paddock.

[5] Each of the pursuers' titles are registered in the Land Register without exclusion of indemnity under title numbers as set out in conclusion one of the summons.

[6] Included in the real rights vested in the pursuers, are servitude rights of access. The servitude rights are created by express grant in the form of a deed of servitude by Mr G G F M dated 30 June 2004 ("the deed of servitude"). These servitude rights are described as follows:

(a) In the east cottage land certificate:

"a servitude right of vehicular and pedestrian access along with other parties having a right to use the same to and from the subjects in this Title by way of the farm road tinted brown and yellow on the Title plan."

(b) The east cottage title also contains a servitude right which is in the following terms:

"servitude right of way for pedestrian and vehicular traffic along the existing roadway, footpath and verges hatched in blue on the title plan."

(c) The west cottage title has a servitude right in the following terms:

"a servitude right for pedestrian and vehicular access along with...other parties having a right of access thereby to and from the subjects in this title to the public road by way of a farm road leading thereto, part of which is tinted brown on the said plan."

[7] The first defender's title is also registered in the Land Register with a title number as set out in the pleadings. The first defender has a servitude right in the following terms:

"the right of way and access both pedestrian and vehicular at all times and for all purposes along with other parties having right of access thereby to and from the subjects in this title, to and from the public road by way of the farm road leading in a north-westerly direction to..."

[8] In accordance with the Land Registration (Scotland) Act 1979 ("the 1979 Act"), all the properties are described by reference to a plan derived from an Ordnance Survey Map. The Ordnance Survey Map from which the plans are derived is the same for the pursuers' and the first defender's title.

Submissions on behalf of the pursuers
[9] Mr Brown commenced his submissions by generally observing that the registration of the pursuers' title in the Land Register without exclusion of indemnity had certain inevitable consequences. Most obviously, the import of registration was to confer upon the pursuers a real right in and to the entirety of the subjects carried by the Land Certificates (see: the 1979 Act section 3(1)(a)). He pointed out that there was no attempt by the defenders to seek rectification of the register. In any event any such attempt would have been doomed to failure on account of the pursuers' status as proprietors in possession (see: the 1979 Act section 9(3)).

[10] With respect to the general scheme of the title, Mr Brown contended that the following flowed therefrom:

(a) The general layout of the pursuers' property is as follows:

The paddock is separated from the other three titles by a farm road. The other three titles are contiguous. The east and west cottages adjoin each other. Together with their garden ground they form a broadly triangular area the three sides of that triangle are bounded as follows; the back strip runs east to west; it adjoins the triangle, and runs along the north side of the triangle; the other two sides of the triangle are bounded by farm roads; from the southern point of the triangle one road runs northwest and one runs northeast. Those roads are not owned by the pursuers, but by the proprietor of K Estate, G G F M, who granted the deed of servitude.

(b) As regards the first servitude right in the east cottage title he submitted that on the title plan it was clear that the road tinted brown led away from the subjects in a broadly north-westerly direction to the public road, and stopped someway short of the subjects. The road tinted yellow extended from the end of the road tinted brown. It ran in the same direction down the boundary of the west cottage title, until it reached the southern point of the triangle. It then turned approximately 90 degrees onto the road heading northeast and ran along that road, up to about the eastern edge of the east cottage building.

(c) With respect to the servitude right contained in the west cottage title, he submitted that it was essentially the same road as the road tinted brown and yellow on the east cottage title (above referred to), but the servitude stopped a little earlier, at the boundary between the east and west cottages.

(d) As regards the second servitude right in the east cottage title, this was shown in the east cottage title by an area hatched in blue which ran further along the road heading northeast. It ran from the end of the road tinted yellow up to the boundary of the east cottage title.

[11] As regards the first defender's title he submitted that in accordance with the legislation it too was described by reference to a plan derived from the Ordnance Map. The Ordnance Map from which the plan was derived was the same Ordnance Map from which the pursuers' title plans were derived. Since the subjects were adjacent, the pursuers' property was shown in the defenders' title plan and vice versa. The subjects owned by the first defender were the subjects tinted pink and green on his title plan. These were separated from the east and west cottages by the road running northeast. It was, he submitted, abundantly clear that the defenders did not own the road running northeast or any part thereof.

[12] With respect to the first defender's servitude right, he submitted that it was plain that the first defender's servitude right was restricted to the road running northwest.

[13] Having analysed the various titles, Mr Brown took in summary from them that there was no discrepancy between the respective titles; the road running northeast lay between the properties of the pursuers and the first defender; neither party owned either of the two roads, both of which were owned by Mr G G F M; both parties had servitude rights of access over the road running northwest; the pursuers also had a servitude right of access over the road running northeast and the defenders did not.

[14] Moving on he said this:

"That it was against the context of the general scheme of the titles that the remedies sought by the pursuers had to be understood. The pursuers' sought two remedies: and reading short, these were an interdict against encroachment, on or interference with the subjects owned by them and interdict against interference with their servitude rights."

[15] Against the background of the remedies sought by the pursuers he turned first to the encroachment branch of the case, the subjects were described in the conclusions of the summons under reference to the four separate registered title numbers. In other words, all that the pursuers sought to prevent was the encroachment on or interference with the land owned by them, and they defined that land precisely by reference to their titles. Similarly, the conclusion directed at preventing interference with the servitude rights, described the rights under reference to the Land Certificates.

[16] He then turned to the defenders pleadings.

[17] The defenders, he submitted, appeared to seek to challenge the pursuers' title as defined in the Land Certificates. Thus the defenders averred in answer two at page 13c:

"The pursuers do not enjoy a vehicular right of access over the farm road between the parties' properties for a distance of approximately 150 metres from the end of both properties towards K House. The pursuers have enjoyed pedestrian access to the front of their cottages. Vehicular access of approximately 150 metres would involve them on driving over the defenders property which they have no right to do."

[18] He submitted that this was entirely irrelevant. If it was intended to challenge the existence of the pursuer's right of vehicular access over the road running northeast then no basis whatsoever was set out for such a challenge. The pursuers' right was registered in the Land Register and clearly delineated on the title plans. A bare assertion that there was no such right was not a relevant defence. He reminded the court that there had been no attempt to rectify the register.

[19] Moreover, the ownership of the area over which the pursuers have a right of access is irrelevant. The interdict sought to prevent interference with the servitude right. The servitude right was shown in the register and defined in the plan. It mattered not who was proprietor of that section of road, since whoever was proprietor, whether it be Mr G G F M, the defenders or anyone else, the title was burdened by the servitude in favour of the pursuers. Thus, even if, as the defenders appeared to aver, they owned that section of the road, or any part thereof, the pursuers' servitude right was unaffected. That was so even if, when he purported to grant the servitude right in favour of the pursuers, Mr G G F M did not own the area of land in question. The keeper had registered the right and registration conferred upon the pursuers a real right whether or not the originating deed was truly habile to create the right and whether or not, on a proper appreciation of his title, Mr G G F M was able to confer the right.

[20] If, on the other hand, the purpose of the averment was to indicate that there was some other area of road extending beyond the area over which the pursuers had a servitude right, then that was nothing to the point. Since the pursuers only sought interdict against interference with the exercise of their servitude right, and they defined the extent of that by reference to the Land Certificates.

[21] In conclusion therefore, on either view, the averments quoted were irrelevant and should be excluded from probation. There was no relevant defence he submitted to the proposition that the pursuers had the rights which they claimed.

[22] Turning to the rest of answer 2, he submitted that this appeared to be directed at establishing the proposition that access could conceivably be taken to the east and west cottages by way of the back strip, if it were to be cleared of vegetation, if boundary features were to be rearranged and if a shed were to be moved. The suggestion appeared to be that this might amount to a defence to the assertion that the defenders were not entitled to interfere with the express servitude right over the road running northeast. There appeared to be a wish to traverse historic detail. There was thus what he described as a bizarre call from the pursuers to produce "the sales particulars relative to the cottages which they relied on when buying the property", as though these, rather than the Land Register, were somehow the measure of the pursuers' rights.

[23] It was submitted that these averments were irrelevant in their entirety. The pursuers had a servitude right constituted by express grant and following a clearly defined route. They were entitled to exercise that by that route; see, for example, Hill v MacLaren (1879) 6 R 1363 and Thomson's Trustees v Findlay & Others (1898) 25 R 407. Those decisions concerned attempts by proprietors of servient tenements unilaterally to vary the route of such servitudes. In the present case, the position is clearer still since the defenders were not even the servient proprietor and in fact have no rights at all over the road running northeast. If the defenders were able to prove every word of these averments and establish that the pursuers would be able to create an access right via the back strip, it would not amount to a defence. The pursuers would remain perfectly entitled to use the express servitude right over the road running northeast. That being so, no useful purpose would be served by exploring this material at proof since it could not affect the outcome. Thus he submitted the averments should be excluded from probation.

[24] In conclusion it was the position of Mr Brown that on a proper analysis all that the defence entitled the defenders to do was to put the pursuers to the proof of the averments of the defenders' behaviour which were said by the pursuers to necessitate the grant of interdict. Otherwise the averments should be excluded from probation and proof restricted to that.

Reply on behalf of the defenders
[25] Mr Jamieson began by making a number of general submissions:

(a) First, he advised that the issues so far as the defenders were concerned related not to the first conclusion but to the second conclusion. The averments on behalf of the defenders should be understood as being directed to that conclusion.

(b) Secondly, he advised that the averments anent access being capable by way of the back strip had been inserted in answer to the averments made on behalf of the pursuers that the disputed servitude right of access provided the only means of access to their property. As I understood his position he was (1) not seeking to challenge that the pursuers had been granted a servitude by express grant and (2) he was not seeking to argue that an answer to that express grant was to aver: that the pursuers could obtain access by other means. These averments, as I understood his position, were no more than narrative.

[26] Turning to the substance of Mr Brown's principal attacks on the relevance of the defenders' pleadings Mr Jamieson generally said this: the defenders were not seeking to challenge the title of the pursuers as such. It was his position that they were not seeking to say that there were no servitude rights in favour of the pursuers.

[27] What the defenders were seeking to do was to challenge the extent of the servitude right. He submitted that the defenders' challenge was to the physical extent of the servitude right claimed over the road running northeast. This issue regarding the extent of the servitude right was a matter of fact which had to be decided by the giving of evidence by experts. Thus there had to be an enquiry into the factual position in order to establish how the title translated in real terms onto the ground.

[28] What underlay his position was this, that there was no certainty as to the extent of the said servitude right because of its location.

Discussion
[29] The starting point in considering the issues before the court is the concession by Mr Jamieson that he was not seeking to challenge the pursuers' title.

[30] In essence he was accepting that the title is what it is. I believe that it is against the background of the foregoing concession that the relevancy of the defenders' pleadings must be considered.

[31] The critical averments for the defenders, it seems to me, are these:

"The pursuers do not enjoy a vehicular right of access over the farm road between the parties' properties for a distance of approximately 150 metres from the end of both properties towards K House. The pursuers have enjoyed pedestrian access to the front of their cottages. Vehicular access of approximately 150 metres would involve them on driving over the defenders' property which they have no right to do." (See answer 2 at page 13 letters B to D).

[32] These averments are somewhat fleshed out later in answer 2, however, the crux of the defenders' answer to the pursuer's case is contained in the above passage. Though it is asserted by Mr Jamieson that there is not a challenge to the pursuers' title, it is, I believe impossible, to read these averments as other than a challenge to the pursuers' title and to the servitude right of access over the road running northeast.

[33] This servitude right of access is registered in the Land Register and set out clearly in the plans. Such a challenge cannot, in my view, be a relevant defence. As was submitted by Mr Brown there is no attempt to rectify the register.

[34] Moreover, insofar as the said averments seek to contend that the first defender owns a section of the road running northeast and when taken in conjunction with their averments at 14 A-C, it is my view that it is a proper construction of their pleadings that they are seeking to assert ownership of part of the road running northeast, that is also irrelevant. I am persuaded by the submissions of Mr Brown that even if Mr G G F M who granted the servitude right in respect of the road running northeast, did not own the area of the land in question, the Keeper has registered the right and registration confers upon the pursuers a real right.

[35] The irrelevancy of the defenders' pleadings can be shown by reference to what the Scottish Law Commission's report on Land Registration (SLC Report No 222) Vol 1 says:

"Rights in land are what the Register says they are and the Register says what the Keeper decides it should say. The Keeper giveth and the Keeper taketh away." (See paragraph 13.3); and

"Everything that the Keeper touches turns to valid." (See paragraph 13.9).

[36] Thus even if the defenders were to establish that their title extended into the road running northeast and thus show that Mr G G F M did not own the area of land in question, that would not provide a valid defence.

[37] If on the other hand these averments are to suggest that there was some other area of road extending beyond the area over which the pursuers have a servitude right then I believe Mr Brown's submissions dealing with this have considerable force. The pursuers are only seeking to interdict against interference with the exercise of their servitude right as the extent of that is defined in the Land Register. Thus, if the averments are suggesting the above they are not an answer to the remedy sought.

[38] Beyond that, when examined there is no discrepancy between the parties' respective titles. The titles as defined by their respective plans each show that the pursuer's east and west cottages and the first defenders' property, are separated by the road namely the road running northeast. The titles are clear in showing that neither party owns the road running northeast. The titles are equally clear in showing that the pursuers have a servitude right over the road running northeast. The pursuers' title is registered in the Land Register without indemnity. There is no basis having regard to the title deeds for asserting that the extent of the servitude right requires to be examined by means of expert evidence.

[39] Finally, the pursuers have a servitude constituted by express grant, it is clearly not a relevant defence to aver that access could be exercised over some other route. The pursuers are entitled to exercise it by the road running northeast (the express grant) even if there is another possible access route. These averments are also clearly irrelevant. Mr Jamieson stated they were not there to challenge the express grant, however, the reason for their presence given by him does not render them relevant. It is possible these averments could have had some relevance in relation to the issue of balance of convenience when considering interim interdict, that stage however has passed.

Decision
[40] For the foregoing reasons, I accept the position put forward on behalf of the pursuers that the defenders are only entitled to put the pursuers to proof on their averments of the defenders' behaviour which are said by the pursuers to necessitate the grant of interdict. I agree that the balance of the averments are irrelevant and should not be admitted to probation. I accordingly exclude the following averments from probation.

(a) In answer 2 at page 11 of the closed record from letter D the word "At" to the end of the answer and

(b) In answer 5 at page 24 of the closed record, from the word "The" at letter D to the end of the answer.

[41] With respect to further procedure and the issue of expenses I have had the case put out by order.