Sheriff Appeal Court refuses appeal in boundary dispute over piece of land less than 1m wide

About this case:

• Citation:
  [2022] SAC (Civ) 20
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal N A Ross

Margaret Dougherty, the proprietor of 110 Old Edinburgh Road, raised the action in the Sheriff Court against her neighbour, Linda Taylor, of 108 Old Edinburgh Road. The pursuer and appellant argued that the defender and respondent had encroached onto her property. At issue was the question of whether a Land Certificate plan was precise enough to allow for the dispute to be resolved.

The appeal was heard by Sheriffs Principal Marysia Lewis and Nigel Ross, along with Appeal Sheriff Fiona Tait. Logan, advocate, appeared for the appellant and Thomson, solicitor, for the respondent.

Registered title

It was the evidence of the appellant that the ground on which both properties were located was acquired by her family in 1890, with number 110 being disponed in 1918 and number 108 being disponed in 1950. The title to number 110 became subject to voluntary registration in 2015, while the title to number 108 was a sasine title.

On the site there were few reliable markers or other visual clues as to indicate where the boundary lay. The appellant sought to ordain the respondent to remove certain items from the disputed area, including a shed, a metal frame, a motorbike, and a length of fencing she had erected.

At proof, the appellant submitted that the Land Certificate plan, which showed a dotted line marker by her surveyor on a detailed plan, required to be given effect and thus proved encroachment. Following proof, the sheriff held that the appellant had established encroachment for part of the boundary but not for a strip approximately 90 feet long.

It was submitted for the appellant that the sheriff had erred in finding that the scope of her title differed from what was shown on the Land Certificate, the content of which had not been subject to findings in fact by the sheriff. He had not been entitled to rectify or alter her registered title and ought to have respected the plan as final.

The respondent submitted that the Land Certificate plan did not resolve matters, because it could not operate to transfer land which was owned by the respondent, who had obtained ownership by prescriptive possession. In any event, it was submitted that the strip of land was too narrow for the Land Certificate plan to accurately determine ownership. 

Poorly defined plan

Delivering the opinion of the court, Sheriff Principal Ross began: “The appellant proceeded on a bare assertion that the respondent was encroaching on her land, without seeking decree of declarator as to where the boundary lay. That absence of focus may explain the nature of the wide-ranging discussion embarked upon by parties and the sheriff.”

He continued: “The law of prescription, and the law relating to competing registered and sasine titles were not discussed in any detail before this court and we were not invited by either party to embark on any detailed consideration of the law. Authorities were mentioned but not examined. We therefore forbear from making any findings or comment relating to either prescriptive possession or the effect of competition between registered and sasine titles.”

Assessing the sheriff’s approach to both parties’ evidence, he said: “This action was drafted, and proceeded, on the basis that the appellant offered to prove that she owned the disputed strip of ground. The sheriff preferred the evidence of the respondent’s surveyor, Mr Noble, over that of Mr McWilliam. As the appellant’s case depended entirely on the plan prepared by Mr McWilliam (which in turn was said to reflect the Land Certificate plan boundary), the appellant failed to prove her case. In our view, the sheriff was entitled to prefer the evidence in the manner he did.”

He explained further: “There was no error by the sheriff in accepting, at least in this context, that the court could look behind the Land Certificate plan, not because it was not authoritative, but because it was not sufficiently accurate with regard to the tiny measurements and vague boundaries. Having done so, the sheriff’s findings that the appellant had failed to prove her case was, in our view, a conclusion which was supported by the evidence. The sheriff did not, contrary to the appellant’s submission, rectify or alter the registered title of the appellant.”

Sheriff Principal Ross concluded: “The sheriff did not err in the exercise which he undertook. The sheriff did not either purport to, or implicitly, rectify the Land Register. We do not agree either with the respondent’s submission that the registered title was not a good basis from which to claim infringement of right. The problem for the appellant in this case was, however, that the area was so narrow and poorly defined that the dispute was beyond the capacity of the Land Certificate plan to resolve.”

The appeal was therefore refused.