Sheriff Appeal Court allows appeal in dispute over ownership of scrubland on Ardnamuchan peninsula

About this case:

• Citation:
  [2023] SAC (Civ) 33
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Derek Pyle

Pursuer and appellant Ardnamurchan Estates Ltd argued that, in deciding the case in favour of defenders and respondents, Michael and Karen MacGregor, the sheriff had ignored important evidence and drawn inferences unsupported by facts.

The appeal was heard by Sheriff Principal Derek Pyle, with Appeal Sheriffs Fiona Tait and Derek Hamilton. Mure KC appeared for the appellant and McLean KC for the respondents. All three sheriffs issued individual opinions.

No guarantee

In 1992, the respondents purchased a farm which, according to the particulars of sale, included the disputed piece of ground, described by the court as “unremarkable”. Under advice, they then granted to themselves an a non domino disposition of the disputed ground, which was later ruled to be invalid.

The appellant later purchased a substantial estate, part of which was contiguous to the respondents’ farm. The solicitor for the appellant determined that the respondents did not own the disputed ground and acquired a title to it from a successor trustee whom the appellant was advised was the true owner.

At proof, a considerable amount of evidence was led before the sheriff, including witnesses and a number of title deeds dating back to as early as 1934. The respondents contended that on a proper construction, the 1992 feu disposition in their favour included the disputed subjects. After proof, the sheriff sustained these arguments.

It was submitted by the appellants that the 1992 disposition to the respondents was a bounding title that could be identified from its boundaries and not by a general description. The sheriff had erred in asking whether the description in the 1992 disposition was sufficiently precise and intelligible to enable the court to fix the boundaries of the conveyance, and allowing extrinsic evidence in order to determine the matter.

Additionally, it was submitted that the sheriff had erred in failing to take into account the words “or thereby” after the figure for the acreage. That term meant the title made no guarantee that the disponees would become the owners of any precise acreage and allowed for a reasonable measure of variation.

Intention to exclude

In his opinion, Sheriff Principal Pyle said of description of subjects: “In the construction of descriptions of the subjects to be conveyed in a disposition the correct approach is as follows: each case turns upon its own facts and circumstances; there are no hard and fast rules unless either the measurement of the acreage or the plan is declared to be taxative and the other is not; in so far as the authorities give guidance, only ‘broad presumptions’ rather than rules may be deduced; [and] where there is an inconsistency extrinsic evidence is admissible and that can include evidence of possession.”

He later said: “The sheriff decided that the disputed subjects could not be part of the pertinents of the whole subjects. But she did not address the argument on its merits, merely concluding that as the disputed subjects formed part of the whole subjects they could not be a pertinent.”

However, unlike the other sheriffs, Sheriff Principal Pyle formed the view that he would allow the appeal on the second ground but not the first.

Created uncertainty

Appeal Sheriff Tait, who allowed the appeal on the first ground, added: “Extrinsic evidence cannot be used to create an ambiguity where none appears on the face of the deed. It seems to me that irrespective of whether the plan is demonstrative or taxative, that the actual discrepancy in acreage does not permit extrinsic evidence to construe the disposition. I disagree that the actual discrepancy in context creates uncertainty such that extrinsic evidence is admissible.”

Appeal Sheriff Hamilton concurred: “Whatever the intention of the parties had been during negotiations, (and we did not have their concluded contract), it is clear the intention of parties when drawing up this deed was (if nothing else) to exclude the disputed area. There has to be public confidence in the land registers. A purchaser cannot expect to be party to a deed which clearly excludes an area which the seller is not prepared to dispone, and then expect to be able to introduce extrinsic evidence effectively to amend the public record to which they had agreed.”

The appeal was therefore allowed, and the case put out by order to address the precise wording of the final order.