Proof allowed in boundary dispute and trespass claim in dispute between Aberfoyle property owners

About this case:

• Citation:
  [2024] CSOH 104
• Judgment:
  External link
• Court:
  Court of Session Inner House
• Judge:
  Lord Braid

Pursuer Elizabeth Rose averred that first and second defenders Richard and Shona Baston annexed part of her land when they removed a boundary fence in 2022, and sought rectification of their title sheet, interdict, the restoration of her fence, and damages. The defenders accepted that they entered the disputed portion but said they were entitled to do so as the land in question formed part of the land on their title sheet.

The case was heard by Lord Braid in the Outer House of the Court of Session. Dean of Faculty, Roddy Dunlop KC, appeared for the pursuer and Garrity, advocate, for the defenders.

Midas touch

In 1987, the pursuer and her late husband purchased Creag Mhor House, with the disposition recorded in the General Register of Sasines on 20 October 1987. On 30 August 2022, the first and second defenders registered a disposition over a neighbouring plot, Orchard, on which they built a house. The Bastons’ land previously formed part of a larger area of land including Creag Mhor Cottage, owned by the fourth defender Russell McKeand, whose title certificate also included the disputed portion of land.

The essence of the pursuer’s claim was that the defenders’ registered title and the cadastral map erroneously included the disputed ground, which she had used and cultivated as a garden since 1987. Counsel for the defenders submitted that there could be no inaccuracy in title as Mr McKeand had benefited from the Keeper’s Midas touch when he obtained title in 2009, with the effect of conferring title on the disputed portion to him.

Mr Dunlop, for the pursuer, submitted that the Midas touch was nothing to the point, since the pursuer was offering to prove that the Keeper had the power to rectify the register immediately before the designated day. The defenders’ argument conflated what was conveyed in 1986 with what was in the 2009 registered title, but the pursuer’s position, on averment, was that the latter did not conform to the former.

In relation to the case for trespass, the pursuer averred that the defenders’ acts, in entering her property and removing a large fir tree after she refused them permission to do so, amounted to harassment of her. She also averred that on numerous occasions between December 2021 and April 2022, the first defender contacted her to importune her to sell either her house or the disputed portion and continued to do so despite her telling him that she had no intention of selling either.

For the defenders it was submitted that the pursuer’s averments did not set out a course of conduct amounting to harassment. The averments regarding the phone calls were wholly lacking in specification, and the Protection from Harassment Act 1987 was not designed to strike at behaviour such as tree felling and fence removal.

Hard to fathom

In his decision on the rectification case, Lord Braid began: “I have already identified a number of questions of fact, which, by definition, can be resolved only by the leading of evidence. That is the short answer to the defenders’ contention that the case can be resolved by an examination of the material deeds and plans.”

He explained further: “First, the pursuer offers to prove that the boundaries described by the measurements take in the disputed portion. That will require the leading of evidence, most probably from a surveyor. Second, where the description describes the boundary as the centre line of a mutual fence, as this one does, it is difficult to see that inquiry into the existence and location of the fence is not required. True it is that a fence might not necessarily follow the line of a boundary, but whether or not it does is a question of fact.”

In respect of the trespass case, Lord Braid said: “The submission for the defenders that this is not the sort of conduct struck at by the Act is hard to fathom: any type of conduct can be harassment if it forms part of a course of conduct and if it falls within section 8(1). The conduct alleged by the pursuer is capable of amounting to harassment.”

He concluded: “While it is true that the pursuer might usefully have separated out the trespass claim from the harassment one, and have had separate averments of loss in respect of each, the fact that she has not done so is no reason to dismiss those parts of the action. The pursuer adequately avers her alleged losses in article 23 of condescendence. As regards the measure of damages, that, too, cannot be determined without evidence and will turn on the precise facts and circumstances.”

Lord Braid therefore refused the defenders’ motion to dismiss the action and allowed a proof before answer with all averments and pleas-in-law left standing.