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	Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Patterson v Menzies [2000] ScotCS 325 (19 December 2000) URL: http://www.bailii.org/scot/cases/ScotCS/2000/325.html Cite as: [2000] ScotCS 325, 2001 SCLR 266

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[1] In this opinion I shall refer to the pursuer as "Miss Patterson" and the defender as "Mr Menzies". The dispute between them relates to an area of land in Perthshire which I shall call "the disputed land". From the foot of Loch Tay at Kenmore the River Tay runs approximately in a north easterly direction until it is joined from the north west by the River Lyon at Point of Lyon, whence it flows approximately eastwards towards Aberfeldy. The A827 road from Killin to Aberfeldy, having followed the north west side of Loch Tay from Killin, crosses the River Tay by a bridge at its outflow from Loch Tay and then proceeds in a north easterly and thereafter an easterly direction along the valley of the River Tay to Aberfeldy. Taymouth Castle and its policies lie to the north east of Kenmore, between the A827 road and the River Tay. A short distance to the north of the bridge at Kenmore a minor road ("the road") leaves the A827 road and proceeds in approximately a north easterly and then a northerly direction to cross the River Lyon at Comrie Bridge. There it joins the B846 road which runs from Tummel Bridge to Aberfeldy, the stretch from Comrie Bridge running approximately eastwards along the north side of the valley of the River Tay by way of Weem. To the north west of the road lies Drummond Hill, between the Rivers Lyon and Tay, which is extensively forested. At the north eastern corner of the forested area lies Rustic Lodge, an A-listed house which is owned by Miss Patterson. This, and a surrounding area of ground, are situated on the north west side of the road. On the other, south east, side of the road lies another area of ground which is undisputedly owned by Miss Patterson. This is slightly to the north east of Rustic Lodge and the surrounding ground to the north west of the road, so that it is not directly opposite Rustic Lodge. The disputed land lies to the south east of the road, directly opposite Rustic Lodge and generally to the south west of the land on that side of the road undisputedly owned by Miss Patterson. I shall return in due course to the exact situation of the boundary between these two pieces of land on the south east side of the road.

[2] Mr Menzies owns subjects called Mains of Taymouth which lie to the south east of the road. His land extends from the junction between the A827 road and the road just to the north of Kenmore Bridge, where there is a group of buildings, to a point in the north east where, on any view of her title, but subject to further discussion about the situation of the boundary, it is partly bounded by subjects belonging to Miss Patterson. From there, the boundary of Mr Menzies's subjects runs, through several changes of direction, down to the River Tay. Mr Menzies's title does not extend to a strip of land of varying width situated on the north west side of the River Tay from Kenmore Bridge along the bank opposite Taymouth Castle and past Newhall Bridge, which I understand to be a private bridge, situated a short distance downstream from Taymouth Castle, to the north eastern extremity of the subjects owned by him. The river runs at that point approximately from south to north, so that this part of his subjects, lying between the road and the river, is broadly wedge-shaped. I should perhaps mention at this point that, although Mr Menzies was treated at this stage as being the owner of these subjects, I have seen no more recent title to them than the disposition in favour of his great great grandfather to which I shall refer. It was not explained to me how Mr Menzies derives his title by subsequent transmission from his great great grandfather. There was mention of a family firm, D. Menzies & Partners, and also of Mr Menzies's father Duncan Menzies, who is still alive. While I am content at this stage to proceed on the basis that Mr Menzies is the owner of these subjects, this may require further clarification at a later stage.

[3] There has been a long-running dispute arising from the extraction of sand and gravel from, and the carrying out of other activities at, a quarry situated in the broadly wedge-shaped part of the land belonging to Mr Menzies to which I have referred. The main access to this quarry is from the south east side of the road a short distance south west from Rustic Lodge. From the access road the quarry site extends generally north eastwards to a point closer to Rustic Lodge. I shall return to the question of the planning permissions which have been granted for the operation of this quarry, but I mention it at this stage because the relations between Miss Patterson and Mr Menzies need to be seen in this context.

[4] All the subjects I have mentioned so far, i.e. Taymouth Castle and policies, Mains of Taymouth, Drummond Hill and Rustic Lodge, used to form part of the estates of the Marquess of Breadalbane. Taymouth Castle used to have more extensive policies. Rustic Lodge was at one time a gate lodge. Opposite it, leading from the road approximately southwards to the bank of the River Tay was a ride, forming a route from the road to Newhall Bridge. After the First World War the Marquess's estates were broken up and conveyed to several new owners.

[5] Before I turn to the previous conveyancing history, it is appropriate to refer at this stage to an a non domina disposition by Miss Patterson in her own favour dated 22 May and recorded (as were all the other titles I shall refer to) in the Division of the General Register of Sasines for the County of Perth on 19 June 1987. This disposition, which bore to be granted "for certain good and onerous causes", was of "ALL and WHOLE the area or piece of ground wherein there is situated the septic tank and drains presently used in relation to the dwellinghouse and others known as Rustic Lodge, Kenmore, by Aberfeldy in the County of Perth being that area or piece of ground in the parish of Kenmore and County of Perth situated on the south [properly south east] side of the road from Comrie Bridge to Kenmore and immediately to the south west of the garden ground pertaining to Rustic Lodge aforesaid and an entrance gateway all as more particularly delineated and hatched in blue on the plan annexed and signed as relative hereto and being the subjects described IN THE SECOND PLACE in the Feu Charter by Duncan McAinsh and Another in favour of the Forestry Commission dated Thirteenth February and recorded in the Division of the General Register of Sasines applicable to the County of Perth on the Seventh day of June Nineteen hundred and twenty three ...". Two copies of this disposition have been produced. The boundaries of the subjects thereby conveyed, which are the disputed land, are not identical on the copy plans annexed thereto. Generally speaking, the disputed land lies opposite Rustic Lodge and extends on either side of the gateway and part of the ride to which I have referred. In one version, the gateway and part of the ride seem to be included within the boundary, while in the other version there appear to be two separate boundaries enclosing areas of land on either side of the gateway and ride, but not the gateway and ride themselves. At all events, the septic tank and drains serving Rustic Lodge are situated on the disputed land within the boundary to the north east of the gateway.

[6] The Prescription and Limitation (Scotland) Act 1973 provides:

Miss Patterson claims that she has possessed the disputed land openly, peaceably and without judicial interruption since the recording of the 1987 disposition and in any event for a period in excess of 10 years from that date. If so, she has an unchallengeable title to the disputed land.

[7] Following the occurrence of certain events, to which I shall return, Miss Patterson has raised the present action in which she concludes, firstly, for interdict against Mr Menzies either on his own behalf, or jointly with or on behalf of any other person, directly or indirectly, from removing or damaging trees, grass verges or other property, heritable or moveable, present on or forming part of (a) that piece of ground in the parish of Kenmore and County of Perth situated on the south (properly south east) side of the public road from Comrie Bridge to Kenmore more particularly described in, and shown in the plan attached to, the Disposition by Miss Patterson in her own favour dated 22 May 1987 and recorded in the General Register of Sasines for the County of Perth on 19 June 1987, or (b) the house and garden ground pertaining thereto known as Rustic Lodge, Drummond Hill, Kenmore, by Aberfeldy, or from otherwise entering or encroaching upon the said piece of ground, house and garden, and for such interdict ad interim; and, secondly, for an order under section 46 of the Court of Session Act 1988 ordaining Mr Menzies to remove any vehicles, machinery or other property placed by him or on his behalf on the said pieces (sic) of ground, house and garden, and thus to reinstate Miss Patterson in her possessory right thereto, and for such an order ad interim. On 10 November 2000 Lord Reed granted interim interdict in terms of the first conclusion and an interim order in terms of the second conclusion with the exception of the words "and thus to reinstate the petitioner [sic] in her possessory right thereto". Mr Menzies has now enrolled a motion seeking recall of the interim orders pronounced by Lord Reed.

[8] Since, during the hearing before me, questions were raised about the title that each of Miss Patterson and Mr Menzies may have to the disputed land, I think it appropriate at this stage to set out the conveyancing history of the subjects owned by them, so far as it can be established from the titles (most of them copies) which have been lodged as productions and which were referred to in the course of the hearing. The earliest in date is a copy disposition by the commissioner for the Marquess of Breadalbane with consent therein mentioned in favour of Duncan McAinsh and Thomas McAinsh dated 6 and 18 July and recorded on 21 July 1922. The subjects thereby disponed included in the first place the lands of Drummond Hill, bounded in part on the south east by the road, together with a number of dwellinghouses, including Rustic Lodge, and, in the third place, "ALL and WHOLE that piece of ground in the parish of Kenmore and County of Perth on the South side of the said Road from Comrie Bridge to Kenmore and used as a garden in connection with Rustic Lodge on the said lands and others hereby disponed In the First Place". The disposition went on to provide that the subjects thereby disponed were delineated and coloured pink on the plan or tracing from the Ordnance Survey map annexed and signed as relative thereto, but which plan or tracing and description before written although believed to be correct were not warranted. Although two copies of this disposition have been produced, neither has attached to it a copy of the plan, so there is no further comment I can make about it at this stage. It is from this disposition that Miss Patterson's title to Rustic Lodge and the undisputed area of land on the other side of the road is derived.

[9] Mr Menzies's title is derived from an almost contemporaneous disposition by the commissioner for the Marquess of Breadalbane with consent therein mentioned in favour of Duncan Menzies (Mr Menzies's great great grandfather) dated 14 and 18 July and recorded on 24 July 1922. The principal of this disposition, as well as a copy, have been produced. The subjects thereby disponed were the farm and lands of Mains, of which I have already given a general description. The description of the boundary started as follows:

This description appears to suggest that the subjects were bounded, toward the north eastern extremity, on two sides by the garden ground pertaining to Rustic Lodge. This would be incompatible with the existence of a continuous straight boundary from the road along one side of the garden ground and then along the Point of Lyon Field. It would be compatible with what would appear on the plan as an indentation where the boundary passed from the road round two sides of the garden ground to the field. After the description of the boundary the disposition stated that the subjects thereby disponed were delineated and coloured red on the tracing from the Ordnance Survey map annexed and signed as relative thereto. It is a curious feature of this map that, at the critical point, what is otherwise a continuous black outline of the subjects is broken at the gateway opposite Rustic Lodge. Small areas of ground on either side are outlined in black. To the north east of the area to the north east of the gate, the boundary runs in a straight line from the road past this area and alongside the Point of Lyon Field. It is thus not easy to make out what is shown on the map, or to reconcile it with the description of the boundary in the text of the disposition. It is not possible to say at this stage whether investigation of the title to Point of Lyon Field would provide any clarification of the situation of the boundary of the garden ground.

[10] It appears that before the date of the last-mentioned disposition Taymouth Castle and policies had been sold to Taymouth Castle Hydro Hotel Co Ltd. The disposition was granted subject to various servitude rights, including one in favour of Taymouth Castle and policies and the lands of Newhall, part of Taymouth Castle policies, of

[11] By feu charter dated 13 February and recorded on 7 June 1923 Duncan McAinsh and Thomas McAinsh conveyed to the Forestry Commission, in the first place, the lands of Drummond Hill, bounded as therein described, "all as the said piece of ground hereby disponed is delineated and outlined by a pink line on the Plan or Tracing from the Ordnance Survey Map annexed and signed as relative hereto, but which Plan or Tracing although believed to be correct is not warranted", together with various dwellinghouses, including Rustic Lodge, and, in the second place, "ALL and WHOLE that piece of ground in the parish of Kenmore and County of Perth on the south side of said Road from Comrie Bridge to Kenmore and used as a Garden in connection with Rustic Lodge on the said piece of ground hereby disponed In the First Place"; which several subjects were described as being parts and portions of the subjects conveyed to Duncan McAinsh and Thomas McAinsh by the 1922 disposition in their favour. Two copies of this feu charter have been produced, with an uncoloured copy of the plan annexed to one of them. Two further copies of this plan have been produced, one with a pronounced outline in dark pink and the other with a partial outline in pale pink. All of these copies clearly show Rustic Cottage (sic), which is named and shown in the form of a black rectangle, over-coloured in pink as the case may be. On the other side of the road, directly opposite Rustic Cottage, is another black rectangle, over-coloured in pink as the case may be, which is more or less co-extensive with the disputed land. Its north eastern boundary forms a straight line from the road along part of Point of Lyon Field. It forms an indentation in the boundary of the subjects conveyed to Duncan Menzies by the 1922 disposition in his favour, consistent with the description, but not the plan, of the boundary in that disposition.

[12] By disposition dated 25 February and recorded on 18 March 1970 the Secretary of State for Scotland, statutory successor to the Forestry Commissioners, conveyed to Cyril Cooper and Valerie Mary Cooper

The plan clearly shows that the subjects thereby conveyed were Rustic Lodge and surrounding land to the north west of the road, and the area of land on the other side of the road, somewhat to the north east, to which the pursuer undisputedly has title. The disputed area of land directly opposite Rustic Lodge, including the gateway and areas on either side which are outlined on the plan, is clearly not included. By disposition in her favour dated 6 and recorded on 14 February 1972 Cyril Cooper and Mrs Valerie Mary Cooper conveyed to Miss Patterson the subjects conveyed to them by the 1970 disposition in their favour.

[13] The remaining title is the 1987 disposition by Miss Patterson to herself of the disputed land. Her counsel informed me that, having investigated the title to the disputed land, and being of the view that it was intended to have been conveyed by the 1970 disposition in favour of Cyril Cooper and Mrs Valerie Mary Cooper, Miss Patterson approached the Forestry Commission, only to be told that the 1970 disposition carried everything that the Forestry Commission owned on the south east side of the road. There is a note on the relative Search Sheet, to the effect that her solicitor had stated that the Forestry Commissioners were sure that the area disponed by the 1987 disposition was included in the area disponed by the 1970 disposition, and that the 1987 disposition was in corroboration of that title. I am not disposed, at this stage at least, to give any weight to this statement. Whether or not the disputed land formed part of the subjects owned by the Forestry Commission prior to 1970, which depends on the earlier titles I have discussed, it clearly was not conveyed by the 1970 disposition. Accordingly, Miss Patterson's title to the disputed land, if she has one, must depend on the 1987 disposition followed by possession sufficient to satisfy the statutory requirements.

[14] Three possibilities appear to me to emerge from this consideration of the titles: (1)  that the disputed land belongs to Miss Patterson by virtue of the 1987 disposition followed by possession sufficient to satisfy the statutory requirements; (2) that it belongs to Mr Menzies by virtue of the 1922 disposition in favour of his great great grandfather and subsequent transmission; and (3) that it remains the property of the Forestry Commission, by virtue of the 1923 feu charter, not having been conveyed by the 1970 disposition in favour of Mr and Mrs Cooper. These possibilities will no doubt require to be explored at a later stage. Consideration will no doubt be given to the possibility of adding declaratory conclusions to the pleadings for the present parties, and of calling the Forestry Commission as additional defenders.

[15] During the course of the hearing I heard submissions by counsel for both Miss Patterson and Mr Menzies, the latter of whom was present in court along with his father. Productions had been lodged for both parties. Reference was principally made to the productions lodged on behalf of Mr Menzies. According to my notes, reference was made only to one production lodged on behalf of Miss Patterson. It now appears that the inventory lodged on her behalf may not have been intimated to Mr Menzies's solicitors prior to the hearing. During the course of the hearing reference was made to a planning consent which had been granted to Mr Menzies's family firm, on 31 May 2000. For reasons which will become apparent, I asked to see the relative documentation, so that I could understand the scope of the planning consent and the conditions to which it was subject. I had it in mind that I would hear further oral submissions about this documentation, once it became available, should the parties so wish, but by the time that it had been obtained (from the planning authority, as I understand it) my High Court commitments made it impossible for a further hearing to take place. By agreement between the parties, written submissions for each of them were prepared. These submissions were not only directed to the documentation relating to the planning consent, which by then had been lodged as further productions for Mr Menzies, but also took the opportunity of commenting on the productions which had been lodged on behalf of Miss Patterson prior to the hearing but had not been referred to during the course of it. In these circumstances, I have thought it appropriate to have regard not only to the oral and written submissions of the parties, but also to all the productions.

[16] The averments in the summons, on the basis of which, on the ex parte application of Miss Patterson, Lord Reed pronounced the interim orders, are in relatively short compass. As I have said, Miss Patterson claims to be heritable proprietor of the disputed land. The summons then goes on to aver that Mr Menzies operates on his own behalf, or in association with others (the precise nature of any such association being unknown), a quarry situated near to the disputed land. Miss Patterson, who is an elderly lady, has in the past objected to the grant of planning consents for the quarry and continues to object to the manner of operation of the quarry by Mr Menzies. Mr Menzies, it is averred, has begun to clear the disputed land of trees and grass, apparently in order to construct an access road from the quarry to the public road. He has engaged Messrs W.B. Grieve, Croft Namuick, Aberfeldy, as his contractors, and he or they has or have introduced a JCB mechanical digger onto the disputed land. The ground has been dug up by the digger and the septic tank, pipes leading thereto, and electrical cables serving Rustic Lodge have been disturbed and damaged. Further, Mr Menzies has asked Miss Patterson to move cars belonging to her or her family from the disputed land. She has refused to do so, and subsequently a car belonging to her sister which was parked on the disputed land was repeatedly damaged, apparently by the bucket of a mechanical digger, and on one occasion was turned onto its side. On several occasions large stones have been thrown through the windows of Rustic Lodge. Mr Menzies has informed third parties on various occasions that Rustic Lodge is derelict and for sale. Miss Patterson believes and avers that the damage done to Rustic Lodge and to the car was caused by Mr Menzies or by others acting on his behalf or with his encouragement.

[17] Counsel for Miss Patterson accepted that it was, in the circumstances, for him to satisfy me that the interim orders should not be recalled. He explained that Miss Patterson is owner of the disputed land by virtue of the 1987 disposition followed by possession sufficient to satisfy the statutory requirements. It is no part of her position that one has to go behind the title: her position is that the disputed land has always been regarded as part of the garden ground pertaining to Rustic Lodge, so she is not seeking to add to the garden ground by means of a land grab. Counsel said that she has cultivated the land as garden ground. She has planted it with plants and shrubs, cleared it, prevented it from becoming wholly overgrown, and managed it generally. She has erected fencing around part of it. She has parked her cars at the entrance to it. Mr Menzies's father, Duncan Menzies, said to her that she would be better building a garage for herself. Miss Patterson therefore has a prima facie case. So far as the balance of convenience is concerned, counsel said that his primary point is the irreparable harm that would be suffered if the activities complained of were not halted. He referred to the averments in the summons, which I have already quoted. He said that Miss Patterson is too afraid to stay in Rustic Lodge at night and sleeps at her sister's house, returning to Rustic Lodge by day. Her sister's Mini car, which was parked at the entrance to the disputed land, had been damaged, and the inference was that this had been done by the JCB digger. On one occasion Miss Patterson was in the house when a large stone came through the skylight. The police were involved. They said that the stone was too large to have been thrown by a child, so an adult must have been responsible. In these circumstances interim interdict should be pronounced pending resolution of the dispute about Miss Patterson's title to the disputed land. Counsel referred to Burn Murdoch on Interdict, para. 249 at pp.235-6, in support of a proposition that if a pursuer has a prima facie case of owning title to the land in question, it is almost inevitably a very compelling factor in considering the balance of convenience that matters should be preserved entire until a fuller examination of the title may be carried out.

[18] Counsel for Mr Menzies referred in the first place to the titles to the subjects, which I have already discussed. She said that Mr Menzies bases his claim to ownership of the disputed land on the 1922 disposition in favour of his great great grandfather. In addition to the plan, which counsel submitted shows that the subjects thereby conveyed included the disputed land, she referred to the servitude provision as reinforcement of an interpretation that the subjects start at the gateway opposite Rustic Lodge. She said that this right of access is still exercised by the hotel company, now called Taymouth Castle Hotel Ltd. She contrasted Mr Menzies's title with Miss Patterson's, submitting that the statutory requirements had not been satisfied. Mr Menzies had only recently become aware of the existence of the 1987 disposition, so there had been no scope for judicial interruption. There had, however, been no open and peaceable possession. Counsel referred to photographs taken on 24 October 2000. One of them shows a padlocked chain extending across the gateway. Counsel said that this was placed there by the Menzies family in 1960 and the key to the padlock was kept by them. Miss Patterson had never had, or asked for access, through this chain. In another photograph there is a recently-erected fence, which counsel said is near the boundary between land owned by Mr Menzies and land owned by Miss Patterson. As I understand it, this fence is approximately on the boundary between the land which is undisputedly owned by Miss Patterson and the disputed land. Counsel said that the disputed land is part of the Breadalbane environmentally sensitive area designated by the Scottish Executive Rural Affairs Department. Accordingly it is not to be cultivated. There is no evidence that it has been. Counsel referred to the Taymouth Castle Designed Landscape Management Study commissioned by Scottish Natural Heritage in association with the hotel company. In it there is discussion of an area called Polterrow, which is the local name for the area in question. There is a proposal that a feature called the Terrace, which I take to be the ride previously referred to, be re-established as a footpath as far as Rustic Lodge and that the gravel quarry be restored.

[19] Counsel went on to explain that the quarry is licensed to a third party, W.B. Grieve, but is nearing the end of its useful life and restoration is taking place in stages. She said that planning consent has been granted for the first stage of the in-filling of the quarry and also in pursuit of the proposed path from Rustic Lodge to the river. She referred to a plan, showing the area of the quarry, broadly the north eastern portion of it nearest the disputed land, where restoration is being undertaken. She said that restoration has started at that end to restore the amenity of the area most closely linked to Rustic Lodge, and that the planning consent expires in April 2001. The obvious consequence would be that if interim interdict were not recalled, this would not be achieved.

[20] Counsel said that the septic tank is on the disputed area and has been there for some time. It was placed there with the express permission of the Menzies family, perhaps in the 1960s. Its presence on the disputed land could not therefore be attributable to possession following the 1987 disposition.

[21] Counsel submitted that Miss Patterson does not even have a prima facie case. She referred to Hamilton v McIntosh Donald Ltd 1994 S.L.T 212, 793 for the extent of possession necessary to satisfy the statutory requirements. She submitted that there must be acts consistent with belief of ownership. The 1987 disposition had not been followed by any act by Miss Patterson which would equate with the assertion of ownership. She contrasted this with Mr Menzies's activities on the disputed land. He had cleared bushes and undergrowth. He had made applications for planning consent. The quarry had been in operation since 1948. Miss Patterson had always objected to it, but never on the ground that the quarrying activities were carried out on her land. If she had a valid title, she would have been expected to object since 1987 to Mr Menzies's activities.

[22] Turning to the averments in the summons, counsel said that there is no truth at all in the averment that Mr Menzies has begun to clear trees and grass in order to construct an access road from the quarry. There had been a JCB digger, but this was for the fencing work, when it was used to drive poles into the ground. This was the only activity in the region of the septic tank. The new fence was slightly within the boundary of the land belonging to Mr Menzies, and access to carry out the work was obtained from the area around the quarry. On one occasion Mr Menzies asked Miss Patterson to have the Mini car moved because it was derelict, an eyesore and an attraction to vandals. It was there for four years and was last licensed in 1996. There was no evidence that it had been damaged by the JCB digger. There was no reasonable inference that the throwing of stones through Miss Patterson's windows was attributable to Mr Menzies, who strenuously denied that this was anything to do with him.

[23] Counsel further submitted that in any event the balance of convenience favours the preservation of the status quo. Interim interdict, she submitted, should only be granted where there is seeming cogency for its need: Burn Murdoch on Interdict, para. 143 at p.128; Deane v Lothian Regional Council 1986 S.L.T. 22. There is no pressing urgency in the present case. Miss Patterson has been making the same complaints for some months.

[24] In reply to these submissions, counsel for Miss Patterson went further into the question of title and made some of the points I have discussed above. He submitted that Mr Menzies may not have title to the disputed land, and that title to it may, if Miss Patterson has not acquired it, remain with the Forestry Commission. Counsel submitted that the photographs do not show the disputed area in enough detail to see whether or not cultivation has taken place. The presence of Miss Patterson's car and her sister's Mini at the entrance to the gateway is evidence of possession. While Mr Menzies has the key to the padlock for the chain which is now across the gateway, he put it there in place of one put there by the Forestry Commission. Miss Patterson had a key to the previous padlock. She parked cars on one side of the chain, and on the other side she planted trees and bulbs. Planning consent had been granted for the proposed works irrespective of the question of ownership, and did not affect the disputed area. In light of the explanation given by counsel for Mr Menzies, counsel for Miss Patterson said that he was prepared to accept that the work being undertaken was not the construction of an access road from the quarry, but the restoration of a path. The carrying out of any work on the disputed land without the permission of Miss Patterson was however inconsistent with her rights of ownership. The status quo should be preserved until her rights had been determined.

[25] Finally, counsel for Mr Menzies said that it was his father who had placed the chain there in the 1960s for his own convenience. It was nothing to do with the Forestry Commission. The original access to the quarry had been through the gateway. The new access, from a point to the south west, had been created in about 1964 and the chain had been put in place about that time to prevent unauthorised access.

[26] The documentation relating to the grant of planning consent on 31 May 2000 includes a report by the director of planning and development of Perth and Kinross Council. This report and other documents allow a fairly detailed history of the quarry to be given, but I see no need to do so in this opinion. It is sufficient to refer to the most recent events. Following applications which were submitted on 7 December 1993, apparently in an attempt to legitimise unauthorised works which had been carried, planning consent was granted, but with time limits to achieve restoration by 30 April 1999. Restoration was not carried out, and pressure on D. Menzies & Partners led to a fresh application which was in due course granted for a period of ten years retrospectively from 1 April 1999 subject to various conditions. These included submission of a landscaping plan within three months of the date of the consent, and a provision that the area of land to the north east of a line on the plan be cleared of all plant, machinery and useable material within three months from the date of the consent, and that part of the site be restored to natural woodland in accordance with the approved landscaping plan within a period of one year from the date of the consent. These conditions may be related to a passage in a letter by the architect for D. Menzies & Partners which referred to the proposed "reinstatement of the original path around the perimeter of the quarry linking the north end of the terrace to the access gate at Rustic Lodge via the riverside". As with so much else of the material before me, these documents are lacking in clarity to the extent that differing interpretations of them are possible. The plan in question has an outer outline, which I take to be intended as a representation of the boundary of the broadly wedge-shaped north eastern part of the subjects owned by Mr Menzies. But within the boundary is another outline, which appears to be intended as a representation of the present quarry site. It may very well be that this site is the area in respect of which planning consent has been granted, and which is therefore subject to the conditions attached to that consent. Moreover, the documents now produced do not include an approved landscaping plan. It is thus not possible to say with any certainty whether there is an obligation to carry out work on the disputed area (which in itself would depend on ownership of it). Naturally enough, the parties have made competing submissions about this planning consent. Their written submissions have also extended to another point I raised, which is whether in objecting to the application for planning consent Miss Patterson inter alia stated that she is the owner of the disputed land. In a letter dated 8 March 2000, stating further objections to the application, Miss Patterson wrote:

This appears to me to be a clear assertion of a right of ownership, whether or not well-founded.

[27] It will have been apparent from what I have said so far that neither party has an unassailable title to the disputed area. Miss Patterson's depends on possession for the prescriptive period sufficient to meet the statutory requirements. Mr Menzies's depends on the proper interpretation of the boundaries described in and shown on the plan annexed to the 1922 disposition in favour of his great great grandfather. The terms of the servitude right of access over the subjects, which are not in any event entirely specific, cannot qualify the express terms of the dispositive clause, whatever their proper interpretation. On one view, the Forestry Commission may own the disputed land. I am not obliged to accept at this stage the statement that the septic tank serving Rustic Lodge was installed in the disputed land with the permission of the Menzies family: its installation there is equally compatible with the perception that the disputed land belonged at that time to the Forestry Commission. Equally, if the gateway opposite Rustic Lodge belonged at one time to the Forestry Commission, this would be consistent with the narrative that the chain across it was placed there by them. So I do not feel bound at this stage to accept the statement that it was originally placed there by the Menzies family. Overall, it is not possible to make any confident prediction about the resolution of the dispute about ownership.

[28] In these circumstances, there is much to be said for the argument that the status quo should be preserved pending resolution of the dispute about ownership. By the status quo, I refer to the situation on the ground. Interference with it would only seem to me to be appropriate if there was some compelling reason. I am not able to identify any such compelling reason in the information given to me. Although none of the plans that I have seen is provided with a scale, so that I do not know what are the dimensions of the disputed land, it appears to me to be of very limited extent, taking up a relatively small corner adjacent to the gateway. So far as I can see from the photographs, it is already possible to walk across the disputed land without the need for any form of clearance or making up of the ground. The derelict Mini, which now lacks wheels, has ancient damage, but also apparently recent damage consistent with impact with a JCB digger. The Mini may have been placed there by Miss Patterson in assertion of her perceived rights, just as the presence of the JCB digger on the disputed land is no doubt attributable to Mr Menzies's assertion of his perceived rights. It was not explained to me why the new fence was erected at that particular time. It may well serve a useful purpose, subject to resolution of the question of ownership, but the timing of its erection may be as much attributable to the furtherance of the dispute between the parties as to any pressing land-management requirement. It seems to me to be reasonably clear, both from events which have already taken place and from what his counsel told me that he proposes to do, that Mr Menzies intends to carry out further operations on the disputed land, whether or not these are objectively necessary. The professed aim of improving the amenity of the neighbourhood of Rustic Lodge would carry more weight if the work which Mr Menzies proposes to undertake had been discussed with Miss Patterson rather than carried out despite her protestations. This is the kind of situation in which it is understandable that Miss Patterson should blame Mr Menzies for the damage done to Rustic Lodge itself. My view on this aspect of the matter, however, is that if the police have been unable to find out who threw stones through the windows and so on, then it would be inappropriate for me to draw any conclusions myself. Such events can, however, only add to Miss Patterson's perception that there are malign forces ranged against her. She herself does not propose, as I understand it, to carry out any operations herself on the disputed land beyond what she has already done. There is therefore much to be said for halting Mr Menzies's operations on the disputed land (but not, of course, elsewhere on land indisputably owned by him), and that is what would be achieved by the keeping in force of the present interim orders.

[29] Some criticism was directed to the terms of these orders by counsel for Mr Menzies on the ground that the boundary of the disputed land is insufficiently clear in the 1987 disposition for Mr Menzies to be able to tell, with the certainty appropriate to an interdict, whether or not any operations carried out by him would be on the wrong side of the boundary and would hence amount to a breach of interdict. So far as I can see, however, the plan (the two versions of which I have discussed) is sufficiently clear for there to be no real difficulty in the meantime. I might be more concerned about this point if it were not that I see no reason in any event for Mr Menzies to carry out operations right up to the boundary, with the consequent risk of crossing the boundary should he be mistaken about its situation. Despite my reservations about Mr Menzies's responsibility for events at Rustic Lodge itself, the interim orders nevertheless appear to me to be apt to restrain the proposed operations on the disputed land. Given therefore that Miss Patterson has a prima facie case for claiming ownership of the disputed land, and given what appears to me to be the clear desirability of preserving the status quo, which I regard as a major factor in the balance of convenience, I shall refuse Mr Menzies's motion for recall of the interim orders.