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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> MacDonald v. Turcan Connell (trustees) [2004] ScotCS 64 (12 March 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/64.html Cite as: [2004] ScotCS 64, 2005 SCLR 159 |
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OUTER HOUSE, COURT OF SESSION |
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A2873/02
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OPINION OF T G COUTTS, QC Sitting as a Temporary Judge in the cause MRS ELIZABETH MACDONALD or DALTON Pursuer; against TURCAN CONNELL (TRUSTEES) LIMITED and OTHERS Defenders:
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Pursuer: Keen, Q.C., Webster; Shepherd & Wedderburn, W.S.
Defenders: J. R. Campbell, Q.C.; Bell & Scott
12 March 2004
[1] In this action, the pursuer seeks declarators of proprietorship of certain lands including the alveus of the Water of Leith between two specified points and secondly, of a servitude right of access to a roadway. [2] The second declarator was not in dispute. The pursuer claimed title to the said alveus via a Disposition to her by her husband dated 20 April 1992 and recorded in the General Register of Sasines for the County of Midlothian on 22 April 1992. That Disposition referred to a plan in a Disposition by Henry Bruce & Sons Limited (Bruce) in favour of Stephen Dalton dated 15 June and recorded in the General Register of Sasines 13 July 1970. [3] The competing title, that of the defenders, derives from a Disposition of the alveus by Lord Dalmeny who claimed the original proprietorship in the lands. [4] It is unnecessary to undertake a full review of the competing titles since the issue for the Court resolved itself into the question of whether the said 1970 Disposition was apt to found title to the alveus and if so, whether the necessary rights of ownership had been asserted for the prescriptive period. [5] In the 1970 title by the Disposition by Bruce in favour of Stephen Dalton, various pieces of land were purported to be conveyed. These were described as lands respectively coloured red and green on a plan annexed to the Disposition. So far as the lands coloured red were concerned, no question arose as to the title of Bruce to convey and to Stephen Dalton to receive those lands. However, in relation to the lands coloured green, the Disposition was by way of an a non domino title. The description of the lands conveyed by Bruce was "all and whole the lands and others... being the several areas of grounds extending in all to 31 acres or thereby delineated and coloured red and green on the plan annexed and signed as relative hereto which plan is demonstrative only and its accuracy is not warranted." There were various exceptions of lands in the Disposition with which the Court is not concerned. A proper conveyancing progress of title was available for the lands coloured red but in relation to the lands coloured green one was described as "an area of woodland extending to one and a half acres" with a descriptive boundary. The other, the piece of land in question in this litigation, was described as "all and whole the area of ground extending to four tenths of an acre or thereby on the north side of the Water of Leith and delineated and coloured green on said plan". [6] The lands delineated in green above from the plan appear to extend to the edge of the Water of Leith but no further. The same is true of the lands coloured red on the south side of the Water of Leith.Ownership of the Land to the North of the Water of Leith
[7] By Feu Disposition by Edinburgh Corporation, statutory successors to the Water of Leith Purification Commissioners, the Corporation, as heritable proprietors for consideration granted a Feu Disposition to Stephen Dalton on 12 October 1972 which was recorded in the appropriate register on 18 October 1972. That Disposition referred to the Corporation's lands as being delineated on an annexed signed plan. That Disposition, it was conceded, did not convey the alveus of the Water of Leith. Examination of the delineated boundary of the area conveyed proximate to the Water of Leith shows that it is identical with the Bruce Disposition. Accordingly, from 1972 Stephen Dalton had a title to the lands to the north of the Water of Leith which did not depend upon prescription for its validity. [8] Founding upon his title derived from Bruce, Stephen Dalton had conveyed in 1970 two separate pieces of ground respectively to Sandy Dyer (Contractors) Limited and EMD (Edinburgh) Limited. Both these pieces of land were part of the lands coloured red in the plan annexed to the Bruce Disposition. [9] The Court was informed that a line on the plan, shown on each of the Dispositions by Bruce and Edinburgh Corporation represented a bridge which supported pipes. The pursuer avers as follows in relation to Stephen Dalton,"He kept a bridge over that part of the alveus of the Water of Leith in issue referred to in the first conclusion. The bridge supported pipes running between the areas, red and green on the plan attached to the 1970 Disposition."
There are no further averments in relation to that matter and in particular no averments relating to use of the pipes as opposed to their existence.
Contentions in Relation to Title
[10] Both parties made use of data in Gordon, Scottish Land Law, 2nd Ed. The author in relation to special boundaries at 4.34 summarises the position as"Where property is bounded by a river, the presumption is that the boundary is the medium filum of the river. But the presumption can be displaced and where the river is not given as the boundary the bed may not be claimed as a pertinent merely because the land lies on the river bank."
The authority for that proposition is North British Railway v Magistrates of Hawick (1862) 1 M 200.
[11] Put shortly, the pursuer contends that the presumption referred to by Professor Gordon was not displaced; the defenders argue that following Magistrates of Hawick and an examination of the title itself, it had been. [12] The factors relied on by the defenders which feature in the Opinion of the Lord President in North British Railway Company v Magistrates of Hawick were that there, as here, the conveyance described the ground as consisting of a specific quantity specially mentioned and made reference to a plan upon which that ground was delineated. "All that is conveyed is delineated on the plan by certain lines. That is fully as good as any words describing the line for the boundary of this property." The Lord President distinguished Fisher v Duke of Atholl's Trustees, 14 S 880 where in what he described as an ordinary conveyance, the river was declared to be the boundary. In the Hawick case, the Lord President noted that there was no such declaration in the case and that it had been specially avoided. The alveus of the river, he said, was not in the description.Decision upon Title
[13] I consider that the defenders' contention is correct. The description in the conveyance founded upon is of an area shown on a plan and although the edges of that area are stated to be descriptive and not taxative it is to be noted that the boundary is not specified as the Water of Leith. The lands are deliberately described as "being on the north side of the Water of Leith" but not as "bounded by the Water of Leith." Further examination of the plan demonstrates that the Water of Leith is not included. Accordingly it could only be included by implication. There is nothing to give rise to such an implication. Accordingly the pursuer does not have a good title to the alveus.Prescription
[14] If I am incorrect in holding that the title is not apt to convey the alveus then the pursuer's title being founded on an a non domino Disposition requires to be fortified by prescription for the relevant period. It was stressed that a prescriptive assertion of title in the bed of a stream is a matter of some difficulty and there were no averments of actual use or exercise of any proprietorial rights on the land in question save that of the existence of the "pipe bridge". [15] Counsel for the pursuer argued persuasively that the Bruce Disposition was a conveyance of an entire estate and should be regarded as a whole. It was patent that Mr Dalton had acted as proprietor of that estate whole in respect that he had conveyed two areas of ground deriving his right to do so from the Bruce Disposition. Accordingly he had asserted his title to the entire subjects conveyed. In addition, the existence of the pipe bridge over the alveus and through the airspace above it was equally an assertion of right. [16] The defenders argued under reference to Hamilton v McIntosh & Donald Limited 1994 SC 304 that the averments were insufficient to disclose possession of sufficient quantity and quality to indicate that Stephen Dalton was asserting rights of ownership in the subjectsDecision on Prescription
[17] The pursuer's averments are not of sufficient quality or quantity of possession to entitle the Court to allow the matter to go to probation. Exercise of a right to convey lands contained in a composite disposition of various lands could be an assertion of ownership. But conveyance of lands in that part of the disposition which derives from a clear progress of title cannot avail the pursuer in relation to the assertion of ownership by either Bruce or Stephen Dalton of a different part of land outwith that progress. The contrary contention is untenable. If it were correct, a person who expeded an a non domino title to a very large estate who occupied a piece of garden ground in the centre of it could assert that cultivating his own garden gave him a prescriptive title to the rest of the estate. Accordingly I hold that the Dispositions in 1970 by Stephen Dalton assist the contention of the pursuer not at all. [18] That leaves the only matter upon which prescription is said to be founded is the existence of a pipe bridge. It is reasonably clear that that bridge existed before, during and after the whole period in question. There is no averment that the pursuer's predecessors in title and in particular Stephen Dalton, did anything in relation to the pipe bridge, not even that he used the pipes, if any, thereon. The mere existence of the pipe bridge does nothing to assist the accession of any positive right to the area of ground over which it passes. [19] Accordingly even if I were wrong on the matter of title, I would have dismissed the action quoad the first declarator in any event.Future Progress
[20] The Court was invited if it came to the view above, to put the case out By Order so that the uncontested matter of the second conclusion could be dealt with. I propose to repel the second plea-in-law for the pursuer and sustain the third pleas-in-law for the first defenders and the second defenders to the extent of refusing to pronounce decree of declarator in relation to the first declarator sought. Parties may address me on the terms of an interlocutor at the By Order Roll.