Introduction
[1] It has been said of arguments in the world of academia that the reason they are so bitter is because there is so little truly at stake. The same might be observed of certain crofting disputes, and at first sight this might be considered to be a case in point. The members of the court were quite taken aback by the strength of feeling exhibited by parties, witnesses and attending members of the public at the hearing in Castlebay Village Hall on 11 and 12 February 2020 of this challenge to first registration of the respondent’s croft at 26 Glen, Castlebay, Isle of Barra. The tiny sliver of land included within the area registered by the respondent, which the applicant, the tenant of croft 16 in the neighbouring township of Garrygall, contended properly forms part of his croft, is of negligible monetary value and of no obvious practical use to either party, consisting as it does of an irregularly shaped and uneven area of bracken- and bramble- infested scrub, a few metres wide at most, situated between a burn and the verge of a single-track public road. However, such prosaic considerations as monetary value and practical use appeared to play little, if indeed any, part in explaining why the parties themselves contested the case with such zeal and why their friends, relatives and neighbours took such an active interest in the outcome of the application.
[2] What became manifest to us as the hearing progressed, and what explained why the case triggered such strong feelings within the local community, is that the dispute between the parties was standing proxy for a more general controversy over the location of the boundary between the townships of Glen and Garrygall. The respondent himself indeed asserted in a letter to the court dated 19 August 2019 that “This is not the question of the boundary between two crofts but the boundary between two crofting townships.” We infer that the various members of the local community who participated, in one form or another, in the hearing may have perceived that the judicial determination of this application necessarily would settle that issue, but as we shall explain, any such perception would be incorrect. The jurisdiction conferred on us by section 14 of the Crofting Reform (Scotland) Act 2010 (“the 2010 Act”) is narrowly cast and does not extend to determining the historic boundary between two townships, and it follows that our decision in this application is not to be regarded as setting any precedent in that regard.
The concept of a “township”
[3] Although frequently encountered in crofting discourse, the term “township” is not defined in the crofting legislation, but it does appear, somewhat problematically, in the definition of the expression “crofting community” as inserted into section 61(1) of the Crofters (Scotland) Act 1993 (“the 1993 Act”) by section 37 of the Crofting Reform etc Act 2007 (“the 2007 Act”): “ ’crofting community’ means all the persons who (either or both) – (a) occupy crofts within a township which consists of two or more crofts registered with the Crofters Commission; (b) hold shares in a common grazing associated with that township”. The term also crops up in section 38 (Reorganisation schemes) of the 1993 Act. In Wotherspoon v. Crofters Commission (Application RN SLC/224/07 – Order of 13 May 2008), reported at 2008 SLCR 286, the Full Court, under the Chairmanship of Lord McGhie, wrestling with the definition of “crofting community” in the context of an appeal against a decision of the Crofters Commission to refuse an application for a decrofting direction in respect of part of one of the two crofts on the Isle of Gigha on the basis that it would not be in the interests of the crofting community on the island, expressly eschewed the opportunity to define the term:
“[35] We make no attempt to define a “township”. It is enough to say that, plainly, two crofts do not become a township simply because they happen to be mentioned in one application. It is equally plain that two crofts do not become a township simply because they are both on the one island. If we assume that the Commission gave active thought to this issue, there must have been some other basis for the implicit finding that the crofts in question were part of a township. This cannot be seen as a primary fact. It is the type of finding which may be described as a secondary or inferential fact. It requires some primary fact, or facts, upon which the inference may be based.”
The import of that discussion is essentially merely to confirm the observation of Sir Crispin Agnew of Lochnaw Bt., QC, in his Crofting Law (2000), at page 133 (note 2), that what constitutes a township is a question of fact. Whilst crofting folk know a township when they see one, it is not the sort of formally recognised administrative boundary that ordinarily would be depicted on official maps and the like. Neither party attempted to provide us with a definition of the term.
The legislation
[4] Where the Keeper has completed a first registration of a croft in the new map-based Crofting Register (“the register”) under section 9(1) of the 2010 Act, and has issued to the applicant a certificate of registration under section 9(2) of the 2010 Act and sent a copy to the Crofting Commission (“the Commission”) as required by section 9(4) of the 2010 Act, the Commission must, by section 12(1) of the 2010 Act, notify any persons mentioned in section 12(3) of the 2010 Act of the matters mentioned in section 12(4) of the 2010 Act. In terms of section 12(4), those matters are – (a) that the croft has been registered; (b) the description of the croft as it is entered in the registration schedule; (c) the names and designations of any persons entered in the registration schedule in accordance with section 11(2)(b) of the 2010 Act; (d) the right to challenge the registration by applying to the court under section 14(1) of the 2010 Act; (e) the period, mentioned in section 12(5) of the 2010 Act, before the end of which such a challenge must be brought, being the period of 9 months beginning with the date on which the Commission issue notification under section 12(1) of the 2010 Act. The persons mentioned in section 12(3) of the 2010 Act include the crofter of any adjacent croft, and there is also an obligation placed on the applicant, on receipt of the certificate of registration from the Keeper, to give public notice of the registration of the croft by – (a) placing an advertisement, for two consecutive weeks, in a local newspaper circulating in the area where the croft is situated; and (b) affixing a conspicuous notice in the prescribed form to a part of the croft.
[5] By subsection (1) of section 14 (Challenge to first registration) of the 2010 Act, “any person to whom notice is given under section 12(1), or who otherwise is aggrieved by the registration of the croft to which the notice relates”, may apply before the end of the period of 9 months mentioned in section 12(5) of the 2010 Act to the court for an order under section 14(4)(a) or 14(4)(b) of the 2010 Act, being respectively an order that the entry in the register relating to the croft be removed and an order that the entry be modified. Section 14(5) of the 2010 Act provides that where section 14(6) thereof applies, the court must, if making an order such as is mentioned in section 14(4)(b) of the 2010 Act, declare the boundary of the croft to be that which, in all the circumstances, it considers appropriate. Section 14(6) of the 2010 Act is stated to apply where – (a) the application challenging the registration raises a question as to the boundaries of the croft; and (b) the evidence available to the court is insufficient to enable any boundary to be clearly determined. As such, it echoes section 53A (Extent of boundaries) of the 1993 Act, inserted by the 2007 Act, which confers on the court the same power where an application is made to determine a question under section 53(1)(c) of the 1993 Act as to the boundaries of a croft or of any pasture or grazing land a right in which forms part of a croft.
The locus
[6] The croft of which the respondent is tenant is known as 26 Glen. The applicant is the tenant of croft 16 Garrygall. The crofting townships of Glen and Garrygall are located just beyond the eastern outskirts of Castlebay, which is today the principal settlement on the Isle of Barra. The crofts of both the respondent and the applicant are accessed via a single-track public road which, as you approach Castlebay from the north, branches off the right hand side of the main A888 road that circuits the island. A short distance off the main road, the single-track road itself branches near the decrofted site of the respondent’s house at the southernmost extremity of croft 26 Glen, with one branch extending in a broadly south- westerly direction towards the other crofts of the Glen township and the other ascending steadily for several hundred metres in a northerly direction to what is these days a dead end with a turning place on the south west slopes of Sheabhal, the highest hill on Barra. The latter branch of the single track road runs for a stretch alongside a burn (Abhainn a’Ghlinne or the Glen Burn).
[7] To the west of the burn, the respondent’s croft 26 Glen extends northwards for approximately half its length parallel with the burn and the road to a point opposite the croft on the east side of the burn known as 25 Garrygall. Beyond that point, the area of land between the burn and the road widens as the burn bears off to north north west and the road to north north east. Croft 26 Glen as registered by the respondent is bordered to the north and north east by the Glen Common Grazings. On the east side of the burn, crofts (working northwards) 22, 16, 8, 25 and 1 Garrygall extend in an easterly direction, oriented more or less at a right angle to croft 26 Glen, the burn and the road. The fenced area east of the road above croft 1 Garrygall is part of Garrygall Common Grazings (the Goirtean field). Where, north of croft 25 Garrygall, the area of land between the burn and the road begins to widen out, the respondent’s registration of the boundaries of his croft follows the burn. Just south of croft 22 Garrygall, the burn passes through a culvert under the road and continues in a south-easterly direction, later passing under the main A 888 road on its seaward journey. Running along the east side of the road, there can be seen at a number of places the remnants of an old drystone wall. At the top of the road, the wall bears east: outside and running parallel to what remains of the wall can be discerned the outline of an overgrown track (for which, see the photographs lodged as Productions 9A-C and the Google Earth aerial image lodged as Production 10) that continues eastwards to meet the A 888 road where it turns a sharp corner in the course of its descent into Castlebay.
[8] The respondent, in registering his croft, proceeded upon the basis that 26 Glen extends for part of its length across the burn, whereas the applicant contends that no part of croft 26 Glen does, so that the segment of the sliver of land between the burn and the western verge of the road directly opposite and in alignment with his croft’s eastern road frontage is properly part of croft 16 Garrygall. There were obvious discrepancies between the evidence led by the respondent at the hearing and how he has actually registered croft 26 Glen. In the first place, whilst his evidence identified the wall as forming the historic boundary between the townships of Glen and Garrygall, his registration adopts the verge on the west (i.e. the burn) side of the road rather than the wall situated to the east of the road as the eastern boundary of croft 26 Glen in respect of the stretch opposite crofts 22, 16, 8 and 25 Garrygall. In practice, the road having been adopted by the roads authority, little turns on this discrepancy, and the parties and their witnesses proceeded upon the shared understanding that were the court were to find in fact that the historic boundary between the townships was the wall, the applicant’s challenge would fail, whereas were it to hold that the historic boundary was the river, the challenge to the entry in the register for croft 26 Glen would succeed, and that entry would fall to be modified in the manner contended for by the applicant. In the second place, in respect of the land between the burn and the road situated across the way from croft 1 Garrygall, the respondent’s registration, in following the river, departs from the approach adopted by him to the corresponding areas of land opposite crofts 22, 16, 8 and 25 Garrygall, where he has registered to the road. In so doing, he would appear tacitly to have ceded that area to either the (as yet unregistered) croft 1 Garrygall or the Glen Common Grazings; the area of land between the burn and the road past croft 1 Garrygall is accepted by both sides to be part of the Glen Common Grazings, under exception of a plot originally removed therefrom some generations back to provide the site (depicted on the feu plan lodged as Production 4D) for a house for the man then employed to tend the reservoir at the top of the Glen.
[9] The respondent in his evidence acknowledged the existence of these discrepancies, which he attributed to mistake on his part. In the interests of completeness, we would interject at this point that the crofts of two of the applicant’s near neighbours, 25 Garrygall (Mrs Mary Turner) and 8 Garrygall (Donald MacIsaac) in recent years have been registered to the wall and to the east verge of the road respectively. It follows that any of those witnesses whose motive in engaging in this case was to achieve formal recognition in the register of the historic boundary between the townships of Glen and Garrygall are destined to be disappointed, because whatever the outcome of this application, there are already entries on the register which are consistent with neither of the positions contended for by them in evidence. This underscores the point we previously have made that our role in disposing of this application does not extend to making a formal determination of the historic boundary between the two townships.
The witnesses
[10] When fixing the hearing in this application, we commended to parties, in a note appended to our order of 27 November 2019, the practice of lodging in advance of the hearing signed witness statements which, in terms of rule 35(1) of the Rules of the Scottish Land Court 2014 (“the 2014 Rules”), may then be treated as part of the witness’s evidence in chief. We observed that party litigants who themselves intended to give evidence faced the difficulty of doing so without the crutch of an examiner’s questions to guide them through their testimony and ensure that all of the important ground had been covered. A witness statement runs in the first person and narrates all of the relevant facts to which that witness is able and wishes to speak. The contents may be cross-referenced to any documentary productions that bear on that witness’s testimony. The party litigant, after being put on oath, confirms to the court that the contents of the witness statement represent his or her evidence in chief, although this does not preclude the party litigant from taking the opportunity to elaborate orally on particular points made in the witness statement before he or she is cross-examined on that evidence. The use of witness statements in this manner, we have found in previous cases, has the advantage of saving a considerable amount of court time, whilst rendering it less likely that potentially significant evidence is not placed before the court as a result of accidental omission. Both the applicant and the respondent duly adopted this procedure in respect of the evidence they themselves gave at the hearing, and they employed it also for the witnesses whose evidence they respectively led, lodging statements from them in the form of letters addressed to the court, with the result that we were able to complete the hearing and the ensuing site inspection comfortably within the period allocated in our order.
[11] The applicant himself gave evidence, speaking to a witness statement lodged as Production 26. He called as witnesses Miss Mary K. MacKinnon, residing at Glenwood, 10 Garrygall, Castlebay, Isle of Barra [speaking to Productions 6 (a letter) and 25 (a hand-drawn plan)]; Mrs Ena M. Thomas, 12 Glen, Castlebay, Isle of Barra [Production 7 (letter)], and Donald MacNeill, 25 Glen, Castlebay, Isle of Barra [Production 5 (letter)]. The respondent gave evidence, speaking to a witness statement lodged as Production 16A & B. He led evidence from his wife, Mrs Sandra MacDougall, John MacLennan, 129 Craigston, Castlebay, Isle of Barra [Production 14 (letter)]; and Peter MacNeil, 51 Glen, Castlebay, Isle of Barra [Production 15 (letter)]. The respondent sought and was granted permission, under reference to rule 100(3)(b) of the 2014 Rules, to be assisted in the presentation of his case by Mrs Jessie MacNeil, 239 Bruernish, Isle of Barra. Mrs MacNeil is a stalwart of the local community with considerable experience of the registration procedure gleaned from various sources, perhaps most notably her involvement in the delivery of an earlier community croft registration project. After parties’ closing submissions had been completed, we repaired to the locus, where we carried out an extensive inspection in the company of the applicant and the respondent.
An overview of the history of the townships of Glen and Garrygall
[12] We would emphasise, at the outset, that these proceedings are adversarial rather than inquisitorial in nature. Some of the evidence we heard, whether the product of research conducted by the parties and witnesses themselves, or based on oral tradition passed down through their families, relate to matters of historical record that may be capable of formal verification, but we have to decide the case based on the evidence actually placed before us. It is not for us, as a court, to embark on investigations of our own to confirm the accuracy of the historical evidence adduced before us, and we have not attempted to do so. With that disclaimer out of the way, what follows is a short exposition of the history of the neighbouring townships of Glen and Garrygall, based on what the witnesses told us. At least in broad outline, that history, the most complete account of which came from Miss MacKinnon, a keen local historian, was not a matter of dispute between the parties themselves, although there were significant discrepancies to be noted between the respective chronologies of events provided by the witnesses Miss MacKinnon and Peter MacNeil.
[13] The history into which we require to delve here predates by decades the coming into force of the Crofters Holdings (Scotland) Act 1886. The Isle of Barra was acquired by Colonel John Gordon of Cluny, known in his time as the richest commoner in Scotland, in 1838 upon the bankruptcy of its previous heritable proprietor, The Macneil of Barra. There was a settlement at Glen before the crofts at Garrygall came into existence. Before they became crofts, the Glen Lots were allotments, for which prospective tenants bid four-yearly. The Glen Lots as were did not necessarily correspond, in terms of areas and boundaries, to the Glen crofts of today. The land now occupied by the Garrygall crofts had been cleared of people in the 1840s to form part of the lands held by the tenant of the farm of Eoligarry, an incomer with Harris connections called Dr William MacGillivray. Dr MacGillivray resided in Eoligarry House, formerly the home of The (bankrupted) Macneil of Barra, and had two sons, William and Murdoch, gentlemen farmers and keen amateur ornithologists. The wall was erected to hold the cattle belonging to the tenant of Eoligarry. It was built from the stones of the demolished houses of the people who had been cleared, using the labour of some of their former inhabitants, people desperate for food and facing forced emigration to Quebec as the alternative to such work. It was because of that history that Miss MacKinnon spoke of viewing the wall with “disdain”. The area cleared of people did not extend across the burn, Miss MacKinnon speaking of having listened in her youth to stories with an almost biblical power about how the workforce of the MacGillivrays “did not get across the river.” The Glen Lots were not cleared, but became congested as a consequence of having to absorb some of the people from the other side of the burn who had been driven from their homes.
[14] The wall continued eastwards in the direction of Brevig, where it meets the river known as Allt Alasdair, which then runs into Brevig Bay, thereby completing the boundary between the Garrygall and Brevig townships. The existing narrow Glen footpath was upgraded during the MacGillivray era into a cart track, connecting the cattle park at Garrygall to the principal farm steading at Eoligarry to the north-west. In this period, the herring fishing had not yet taken off and Eoligarry and Northbay were places of far more consequence on the island than Castlebay. The Glen cart track was made up into a public road in 1927 and was further improved in subsequent decades. It became a dead end when the new main road around the island took a more direct route down into Castlebay, passing to the east of the Garrygall crofts, and thus bypassing the Glen.
[15] In 1883, as a result of a private land settlement scheme initiated by the then proprietrix, Emily, Lady Gordon Cathcart (who had inherited the Isle of Barra from her late first husband Captain John Gordon, son of Gordon of Cluny), the land within the wall, which must by then have come back in hand, was made over to providing holdings for cottar-fishermen living in the congested townships around Castlebay. The paper “Two Early Resettlement Schemes in Barra”, by Margaret C. Storrie, published in Scottish Studies 6 (1962), a photocopy of which was lodged by the respondent as Production 4E, provides further information about this initiative.
The history of the respondent’s croft
[16] The respondent’s croft, 26 Glen, was formerly known as 1 Glen Lots. 1 Glen Lots was one of eleven pre-1886 allotments in Glen, and was a large unit, taking in not only the land of what is now croft 26 Glen but also of what is today the adjacent croft 23 Glen. 1 Glen Lots was occupied by a family of MacNeils. These MacNeils were not in their origins MacNeils of Barra, but of Ireland, being descended from Dermot MacNeil, a Sligo man who, after being shipwrecked off Barra, obtained employment from The Macneil of Barra on Kisimul’s Galley. The last MacNeil tenant in the direct line of descent was Jonathan MacNeil, who died in the 1940s. Jonathan MacNeil was a great grand-uncle not only of Miss MacKinnon, but also of the applicant, the respondent and Donald MacNeil. Miss MacKinnon recited a nine generation sloinneadh (defined by Lord Macfadyen in Macdonald of Keppoch v Lord Advocate 2004 SC 483 at paragraph [9] as “a traditional Gaelic patronymic genealogy of the male line handed down orally from generation to generation”) going back to the late seventeenth century linking Jonathan MacNeil to his Irish ancestor Dermot MacNeil.
The evidence of use of the disputed area
[17] This case concerns, and our ensuing decision directly affects, only that part of the area of land between the burn and the road taken in by the respondent’s registration that lies directly opposite the road frontage of the applicant’s croft at 16 Garrygall. The question focused by the parties in this litigation, that of whether the historic boundary between the Glen and Garrygall townships is the burn or the wall (both parties agreeing that the answer to that question will determine the location of the present day boundary between their crofts), would seem to arise also in respect of the other Garrygall crofts in the vicinity of the applicant’s croft 16, namely crofts 22, 8 25 & 1 Garrygall. Indeed, some of the evidence we heard about how, in days gone by, the sliver of land between the burn and the road was utilised, and by whom, related to activities on parts with which the present application is not directly concerned. This evidence was admitted, without objection, and we recognise that a consistent and settled pattern of usage of the sliver of land between the burn and the road by the tenants of the Garrygall crofts, with no competing usage by the tenants from time to time of croft 26 Glen, might be of some evidential significance. With one minor exception, to which we shall revert later, the respondent here made no attempt to demonstrate that either he or any of his predecessors in title made any use of the area of land between the burn and the road opposite croft 16 Garrygall, or for that matter opposite any of the other crofts 22, 8, 25 & 1 Garrygall. As previously was noted, crofts 8 and 25 Garrygall, as they have been registered in the Crofting Register, do not extend to the burn.
[18] So far as use by the tenants of the Garrygall crofts and their families is concerned, both Miss MacKinnon and Mrs Thomas, representatives of the generation before the applicant himself, spoke to a time when the inhabitants of Garrygall had made use of the area of land between the burn and the road for a variety of purposes. Miss MacKinnon (aged 70 at the date of the hearing) was born and brought up in the locality, and returned to Barra after teacher training to take up a post in the primary school in Castlebay. Her father had in 1935 acquired one of four feus sold off by the estate within an area on the opposite side of the road from the lower end of croft 26 Glen known as the Glen Plantation, upon which he built a house for his family. He lost his life in a house fire some twenty five years ago and his widow survived for only some nine months after his death. The house was not rebuilt following the fire and Miss MacKinnon had to give up her work on health grounds. She has created a garden of remembrance at the site of the tragedy (Coille na Sithe). She related that when she was a child, which would be in the nineteen fifties, the local children played in the area of the burn, which looked very different then from how it appeared today, overgrown and neglected and the repository of spoil from minor building works in the vicinity.
[19] The tenant of the northernmost croft 1 Garrygall at that time, Miss Johnstone, a retired head teacher, stored her coal on the area between the burn and the road (because back in those days, her house was accessible only up a steep set of steps and coal deliveries could not conveniently have been deposited above the road) and maintained a washing line there. Her housekeeper washed blankets in the burn. Next door at croft 25 Garrygall, the tenant Mrs Galbraith, a widow, made no use of the corresponding area between the burn and the road, which in consequence was overgrown with ferns and wild flowers. The tenant of croft 8 Garrygall, Jonathan Maclean, was an a retired fisherman; he kept an old wooden dinghy containing ropes and nets and a wooden barrel containing salt on the area across the road from his cottage, but after his death, the tenant who succeeded him, a merchant seaman by the name of John J. MacDougall, disposed of these and the area became overgrown.
[20] The tenant of what is now the applicant’s croft, 16 Garrygall, when Miss MacKinnon was young, was his grandfather Neil MacNeil, nicknamed “Fry”. He was then in his seventies, and kept a duck house and a hen house on the disputed area close to the burn. A path, in the nature of a sheep track, ran diagonally across the disputed area to the burn. The path led to a crossing point over the burn that afforded the people living on the east side a means of access to a scrupulously clean and well-maintained well situated within croft 26 Glen, a route which, according to Miss MacKinnon’s witness statement, “had been used for countless years.” The tenant of croft 26 Glen was a Mrs MacNeil, who herself lived on croft 15 Glen. Miss MacKinnon emphasised that as children, “we were told never to stray off this path as we were privileged that Mr MacNeil of 16 Garrygall was allowing us access. We adhered to the same code of conduct on croft No 26 Glen.” The tenant of croft 22 Garrygall was another merchant seaman, Joseph MacNeil, who made only limited use of his croft as he was often away from home.
[21] Mrs Thomas (71) was born and brought up on the croft 12 Glen. She left Barra at the age of twenty and spent much of her married life in Wales. She and her husband moved to Barra after his retirement some eight years ago, but she had made many trips back to the island during the intervening period. She spoke of the children of her time using the area near the burn as a playground. Her evidence was largely corroborative of Miss MacKinnon’s, including her recollection of being told by her mother and grandmother to pay the courtesy of seeking the permission of Mr MacNeil in croft 16 Garrygall before using the path that ran across the disputed area in trips to get water from the well on croft 26 Glen. The inhabitants of Garrygall continued to make use of the well on croft 26 Glen until the houses in Garrygall were connected to the mains, which occurred when she was aged about twelve or fourteen. One point of detail upon which her evidence diverged from that of Miss MacKinnon concerned the use made by Mrs Galbraith, the tenant of croft 25 Garrygall, of the area of land between the road and the burn opposite the house on that croft. On Mrs Thomas’s account, Mrs Galbraith kept a milking cow tethered on that area, on which there also stood a haystack.
[22] In this part of Garrygall township, the houses were erected at the west end of the crofts, close to the road and the burn, and it seems likely that the proximity of these amenities influenced where the tenants of these crofts opted to build after Lady Gordon Cathcart’s scheme came into effect. That said, however, the fact that the tenants of the crofts in that part of Garrygall township had access to and drew water from the burn does not necessarily entail that their crofts extended to the burn. Such usage would be just as consistent with a situation in which the new holdings created by Lady Gordon Cathcart in Garrygall ended at the wall, but the tenants thereof had conferred on them rights of access to, and the right to abstract water from the burn, if indeed such matters were conceived of in such formal terms back in those days. Miss MacKinnon’s evidence of how the children in Garrygall used to fetch water from a well situated within croft 26 Glen when the burn itself ran dry in high summer indicates to us a situation where water was perceived of as being, at least in extremis, a common natural resource for all the people in the locality, rather than the property of one township as against another.
Parties’ competing positions as to the location of the boundary between the townships
[23] The applicant’s witnesses initially asserted that the burn formed the boundary between the two townships, but as the respondent established in the course of his cross-examination of them, such a broadly stated proposition does not hold, and requires considerable qualification. Miss MacKinnon and Mrs Thomas came to accept that above croft 1 Garrygall, and below the point, south of croft 22 Garrygall, at which the burn passes under the road, the burn does not form or mark the boundary between Glen and Garrygall. The copy letter from the Macneil of Barra to Mrs Christina Turner, the tenant of the croft at 20 Glen (formerly Glenlots No. 9), dated 8 January 2003, lodged by the applicant as Production 22, in which, responding to a query as to whether the estate possessed a plan showing all the boundaries of her croft, the landlord replied in the negative, but went on to discuss whether the southeast boundary thereof “was the burn or the modern township road in Garrygall” and conclude that it was the former, sheds no light on the resolution of this dispute, relating as it did to an area in lower Glen situated at some remove from the part of upper Glen with which this application is concerned.
[24] Beyond croft 25 Garrygall, the evidence suggests that Glen Common Grazings crossed over to the east side of the burn: the copy feu plan produced by the respondent as Production 4D depicts the plot of the house for the man employed to tend the reservoir, located between the burn and the road a short distance north of croft 1 Garrygall, as having been taken from Glen Common Grazings. The house located on that plot was known as “Glen View”, and was occupied by a Mrs Jean Roy (nee MacKinnon). The only dwelling that now stands on the plot is some form of mobile home and clearly is not the same structure as was originally erected thereon. The feu plan shows a narrow corridor between the west side of the plot and the burn, marked “Cattle Pass”, allowing for cattle to be moved from the part of Glen Common Grazings above the plot to the part below it without having to go round by the road. Below the point at which the burn passes through the culvert under the road, there are houses (occupied by Mary Scott and Flora MacPhee) with Garrygall addresses and pertaining to crofts with shares in Garrygall Common Grazings which are situated to the west of the burn. Miss MacKinnon and Mrs Thomas had no answer to the respondent’s question as to why the burn should be the boundary between the two townships only in respect of that short stretch opposite crofts 1, 25, 8, 16 & 22 Garrygall. The respondent did not, as we understood him, dispute that the tenants of those crofts in the past may have used the area between the burn and the road for sundry purposes, but he did not accept that the evidence of such usage was determinative of the issue of the status of that land as forming part of those crofts. Miss MacKinnon contended that land was so precious when the Garrygall holdings came into being that none of it would have been left as unallocated “no man’s land” at that time.
[25] The evidence led by the applicant from his cousin, a combative Donald MacNeil (61), did not add much that was new to the historical narrative we had heard sketched out by Miss MacKinnon and Mrs Thomas. Donald MacNeil’s late father was the tenant of croft 18 Glen, regularly cut hay on croft 26 Glen, and knew every boundary in the locality, and like Miss MacKinnon and Mrs Thomas, Donald MacNeil had always been taught that the boundary between the townships of Glen and Garrygall was the river. In response to the point put to him by the respondent that he had never seen any maps showing the boundary between Glen and Garrygall, Donald MacNeil replied that this was because the burn was the boundary. Like Miss MacKinnon and Mrs Thomas, he could provide no answer when it was put to him that self-evidently that did not hold for the areas both above and below crofts 1, 25, 8, 16 & 22 Garrygall. One new fact that did emerge during his testimony was that a rubbish dump, known as the Glen Dump, albeit that it was situated on the Garrygall “side” of the burn (on the hypothesis that the burn formed the boundary between the two townships), was in operation up the glen north of croft 1 Garrygall until the nineteen seventies.
[26] The respondent’s witness Peter MacNeil (73) belongs to the same generation as Miss MacKinnon and Mrs Thomas. Like them, he was a Barra native, the third generation of his family to live on the croft at 5 Glen, and, like so many Barra men, he had pursued a career in the merchant navy. For the last thirty years of his working life, he had spent four weeks at home and four weeks away. He served for 18 years as clerk of the Glen Common Grazings Committee. In his witness statement, he expressed the opinion that “neither the road or river form any part” of the boundary between Glen and Garrygall in the area in dispute. He was adamant that the wall, the line of the entire length of which he authoritatively described, was the boundary, asking rhetorically the question, “if the wall is not the boundary, why was it built in that location?” Peter MacNeil was adamant that the land which came to form the Garrygall crofts had formerly been part of the Glen Lots, and he pointed out that the river did not, and could not, have formed a stock–proof barrier. He explained that whereas the original soumings for the Garrygall crofts were for both sheep and cattle, until 1996, the soumings for the Glen crofts were exclusively for horses and cattle, with no provision for sheep. The Garrygall land was known to be bad for tick, and the Glen people would not have wanted sheep to carry tick over to their side. This rendered it more likely that the boundary was a stock-proof structure like the wall.
[27] The applicant put squarely to Peter MacNeil in cross-examination Miss MacKinnon’s chronology of events, which posited that the construction of the wall pre-dated the creation of the crofts at Garrygall, rather than (as Peter MacNeil’s account seemed to imply) was contemporaneous with it, but whilst Peter MacNeil was emphatic that the boundary between the two townships was the wall, the factual basis upon which that belief rested remained obscure to us. Whilst he did not accept Miss MacKinnon’s chronology of events, he provided no alternative account of when the wall came to be built, or by who. The applicant pursued with Peter MacNeil a line of cross-examination about how, when the boundary fence between the Glen Common Grazings and Barra General Grazings was renewed with the assistance of IDP funding in 1985 (with money left over also financing the renewal of the fence between the Glen Common Grazings and crofts), the line of the new fence did not follow that of the original boundary. This had occurred during the period before Peter MacNeil took over as clerk, during Michael MacNeil’s tenure of that position. Peter MacNeil acknowledged that the line of the new fence had indeed deviated from the line of the original boundary, explaining that the fencing work had been done under time pressure because the funding source was due to expire and the fencers did not have access to the rock drilling equipment they would have required to erect the fence thereon. That the fence was not erected on the line of the original boundary did not have the effect of altering the true boundary, and when the Glen Common Grazings in due course came to be entered in the Crofting Register, the original boundaries would be observed.
[28] We are inclined, in the absence of any coherent alternative account, to give credence to Miss MacKinnon’s chronology of events as being soundly based, but accepting, as we do, that the wall was erected several decades before the creation of the Garrygall holdings, it begs the question how, if the Garrygall holdings were created out of the subjects of the MacGillivray lease, the ensuing boundary between the new Garrygall holdings and the former Glen Lots became the burn? After all, the burn, on Miss MacKinnon’s account, lay outwith the area let to Dr. MacGillivray. As Mrs MacNeil cogently observed in the course of her closing submissions on behalf of the respondent, there was no solid evidence that, at the time the Garrygall holdings were being set up, land was transferred from Glen township to the new Garrygall holdings to afford access to the burn. There was, after all, another burn running through the east end of Garrygall, which was probably the best river in Barra, but for well-known Borve salmon river.
The applicant’s testimony
[29] We have recounted the evidence of the other witnesses before the evidence of the parties themselves because, we think it fair to say, what they had to tell us was essentially derivative in its nature, being either based on what their witnesses had told them, or the product of inferences drawn by them from such other material as they had discovered in the course of their researches. The applicant (58) was brought up on croft 16 Garrygall, succeeding his late mother as tenant. She had been assigned the croft by her father, Neil MacNeil, in 1961, shortly before he died. The applicant had come back to live on Barra, having served in the armed forces between 1979 and 2002. As a child, he recalled his mother washing sheets in the burn because their house had no running water. He stated that “As children, we were taught [by his late mother and others in the local crofting community]” that the boundary between the townships of Glen and Garrygall was the burn”. He had gained some experience of cartography and mapping during his time in the forces, and in the third paragraph of his witness statement he set out, in general terms, why “it would be more logical” for the boundary between two townships to be marked by a geographical feature such as a river than by either a road or wall that might be moved at some future date. He also suggested that whilst old walls may be used to assist in fencing, “it is more a use of what is convenient rather than an indication of [boundaries]”, a point he sought to develop in his cross-examination of Peter MacNeil. The applicant contended that it was clear from the photocopy of the 1888 [Ordnance Survey] map of the area, lodged as Production 20, that the river was the boundary of the Glen Lots. We do not consider that it is legitimate to draw such an inference from the contents of this map, which in depicting physical features observed by the surveyor on the ground, does not purport to associate those physical features with administrative or other officially recognised boundaries.
The opposed motion for late lodging of productions
[30] The same point falls to be made of all of the various other maps produced and founded upon in this process, consisting principally of photocopies of different iterations of the Ordnance Survey sheets for the Isle of Barra through the nineteenth and early twentieth centuries (Productions 3A –D, 4G-H, 11A-C, 17A-C, 18). In particular, it applies to the map upon which Mrs MacNeil, on behalf of the respondent, sought to place considerable weight. Production 8 (see also the enlargement of part thereof lodged as Production 9D) was the plan referred to in orders of the Land Court in 1938 in applications RN 6539 and RN 6540 by the roads authority, Inverness County Council, for the resumption of land for the purpose of road improvements and the assessment of compensation for the tenants of the subjects resumed. It was contended for the respondent that this plan showed Garrygall as being bounded by the wall, with what was, at the time, the main road into Castlebay shown running around it. Mrs MacNeil sought leave, at the hearing, to lodge late productions consisting of other items from the processes in those applications, for the stated purpose of demonstrating that the Glen and Garrygall crofters would have been made aware of the contents of this plan and could, if they had taken issue with how the boundaries thereon were depicted, have raised the issue at that time. We refused her motion, not merely because of its lateness, and the absence of any explanation as to why, if they were considered relevant, those items could not have been lodged timeously, but also because we were not persuaded of their relevance. The location of the boundary between the Glen and Garrygall townships (and by extension the location of the boundary between the respondent’s croft 26 Glen and the applicant’s croft 16 Garrygall) was not the de quo of these applications: the areas being resumed did not impinge on the boundary in dispute in this application, and even if the crofters of Glen and Garrygall did have sight of copies of the plan at the time, the resumption application would not have provided them with a forum in which to air any grievance they might have had about how it depicted that boundary. But over and above that, once again, the fact that the plan shows the physical features of the wall, the road and the burn tells us nothing about which of those features, if any, marks the boundary between the townships of Glen and Garrygall.
The respondent’s testimony
[31] The respondent testified that within his own immediate family, he had always been told that the croft at 26 Glen extended to the wall. On the basis that the Glen Lots were in existence long before the township of Garrygall was created, out of the area within the wall used by the estate’s tenant as a cattle park, it was illogical to suggest that the boundary of the newly created township would extend beyond the wall and the road to the burn. The bulk of the respondent’s testimony consisted of a commentary on his own and the applicant’s productions: like the applicant’s, his evidence understandably was essentially derivative rather than original.
[32] The principal exception to that rule was his account of an incident that took place a number of years ago, when the applicant sought from him permission to site a refrigerated container unit on the disputed area opposite the applicant’s house. As the respondent related it, he gave his permission and the refrigerated unit remained in situ there until it eventually fell apart, only the rusting chassis remaining there latterly. Why, if the applicant considered the [now] disputed area to be part of his croft, did the applicant seek the respondent’s permission to place the refrigerated unit there? The conversation about the placing of the refrigerated unit on the disputed area took place in the respondent’s kitchen, in the presence of his wife, Mrs Sandra MacDougall, who was called by him as a witness to corroborate her husband’s account, speaking to a statement signed by both of them lodged as Production 16A. The applicant acknowledged that a conversation had taken place in the respondent’s kitchen (Mrs MacDougall volunteered that until the present dispute arose, the applicant and the respondent were “never out of each other’s houses”) about the siting of the refrigerated unit, but he demurred at the suggestion that he had then been asking the respondent’s permission to park it on the disputed area.
[33] We thus have two competing accounts as to what passed between the applicant and the respondent on that occasion. As famously has been observed recently in a regal context, some recollections may vary: we are inclined to think either that the applicant, before he looked into the issue, had been content to accept the respondent’s position with regard to the status of the disputed area, or alternatively that he broached the subject in such an oblique manner as to convey to the respondent the [erroneous] impression that he was seeking his permission to place the refrigerated unit thereon. We do not think it particularly matters either way, because as the applicant made clear in the course of his evidence, his position as to which croft the disputed area belonged to evolved over time as his researches progressed: there was no evidence before the court that the status of the disputed area had ever been a bone of contention between the tenants of 26 Glen and 16 Garrygall before the system of croft registration was introduced. For similar reasons, we are not inclined to attach much weight to the evidence of the respondent’s witness, John MacLennan, the principal of John MacLennan Contractors Ltd., whose uncontested evidence was that in the Summer of 2004, he had dumped spoil from the excavation of the foundations of the respondent’s new agricultural shed in the area between the burn and the road without objection from any of the Garrygall crofters [Production 14]. In the period before the introduction of croft registration, it is clear that none of the Garrygall crofters was sufficiently exercised by the issue of the status of that area to query Mr MacLennan’s actings in this regard. For that matter, it was far from clear from his evidence in that in dumping the spoil where he did, he considered himself to be shifting it from one part of the respondent’s croft onto another, as opposed to simply discharging it onto the nearest convenient area of what appeared, to all intents and purposes, to be unoccupied waste ground.
Discussion
[34] We accept without hesitation that all of the persons who gave evidence were telling the truth as they understood it to be. What is more difficult for us to determine is how reliable all of that evidence was. The basic problem is that the conventional means of testing the critical evidence was not available to us. Cross-examination was described by the eminent American jurist John Henry Wigmore as being, beyond any doubt, the greatest legal engine ever invented for the discovery of truth, but where, as here, it consists of the cross-examiner putting to a witness a proposition derived from what one of his forebears had told him about the boundaries of a croft, met with the indignant response that the witness’s forebear had told the witness the exact opposite, and that the witness’s forebear knew far better than the cross-examiner’s forebear what the true position was, with little or nothing by way of substantiating detail to assist us in establishing which of those competing assertions is more to be relied upon, there really is not a lot that we as a court can do with such material. In saying this, we imply no disrespect to the parties, who are not legal professionals and who otherwise both made a good fist of presenting their respective cases. This comment merely reflects the limitations of the evidence available to us in early 2020 of critical events that occurred in the mid- to late- nineteenth century that live on, for the most part, only in conflicting folk memory.
[35] It is a paradoxical feature of this case that perhaps the strongest evidence in support of the respondent’s position came from the applicant’s principal witness. Miss MacKinnon’s account of the creation of the Garrygall township in the early 1880s out of the former MacGillivray cattle park, the enclosing wall of which had been built from stones re-purposed from the ruins of the homes of the people cleared from that area half a century earlier, provided a plausible explanation as to why the new crofts in Garrygall would not have extended beyond the wall and down to the burn.
[36] If the Garrygall crofts were created out of the subjects of the MacGillivray lease, the boundary of which was the wall, and the applicant’s croft is a Garrygall croft, then as a matter of syllogistic logic, it must follow that the disputed area registered by the respondent as part of croft 26 Glen, whatever else it might be, cannot be part of croft 16 Garrygall, and the applicant’s challenge to the respondent’s registration must necessarily fail. Of course, that argument rests on two critical propositions: the first, that the subjects of the MacGillivray lease did not extend beyond the wall, and the second that, when the Garrygall crofts came into being, the reorganisation that occurred did not also effect changes affecting any land beyond the wall (remembering that Lady Gordon Cathcart owned the land on both sides thereof).
[37] We do not have before us a copy of the MacGillivray lease, and so we cannot know the precise limits of the land that was let as a cattle park, and which subsequently was made over for the creation of the Garrygall holdings. There were indications in the course of the evidence that some of the crofts in Glen, including the respondent’s croft 26 Glen and Mrs Turner’s croft at 20 Glen, had undergone changes to their boundaries and extent since they formed part of the Glen Lots, but on precisely when this occurred, and how, if at all, those changes were connected to the establishment of the Garrygall holdings, the evidence was silent. If the new Garrygall holdings extended down to the burn in the vicinity of the disputed area, that would mean that the long established footpath and later cart track that became for a time in subsequent years the main road into Castlebay would pass through, and indeed form part of, a number of the Garrygall crofts, which might be thought somewhat implausible.
[38] The applicant placed considerable emphasis, in his concise and helpful closing submission, on the evidence, as spoken to principally by Miss MacKinnon and Mrs Thomas, of usage of the area of land between the burn and the road by the Garrygall tenants in the nineteen fifties. It does not seem to us surprising that the Garrygall tenants may have put parts of that area of land to use, by way of coal stores, duck houses and tethering points for the family milking cow, in that era, whether for reasons of convenience or of necessity, it being a period of continuing austerity, with the privations of World War II still fresh in the collective memory. But such a pattern of usage, more than half a century after their creation, is far from being determinative of the issue of whether the area of land between the burn and what was by then the upgraded and adopted public road originally formed part of the new Garrygall holdings. A cogent reason why it might not have done is to be found in Margaret C. Storrie’s paper, “Two Early Resettlement Schemes in Barra”, as founded on by the respondent. In that paper, the author, then a Tutorial Fellow in Geography at Bedford College, London, who studied the townships of Bentangaval and Garrygall in September 1957 as part of the Glasgow University Geography Department’s survey of crofting in Barra under the direction of Mr H.A. Moisley, explained that, as originally conceived, Lady Gordon Cathcart’s land resettlement schemes did not contemplate that the tenants of the new Garrygall holdings would be personally resident thereon. Her view was that:
“Barra could never be wholly an agricultural island and she saw little point in establishing yet another community of landholders who would in time become part-agriculturalists and part-fishers. Instead she stressed that in order to be successful, agriculture and fishing had to be separated as much as possible. Fishing ought to be a full-time occupation pursued along the lines of the East Coast fisherman who came from non-agricultural villages. She was trying every means to encourage the local development of fishing, centred on the port of Castlebay, as a source of livelihood for landless families. Already, a hotel for dealers, several shops and a school had been built by the proprietrix in Castlebay, and she had encouraged the erection of piers, curing stations, and the extension of telegraphic communication with mainland markets. At the same time she realised that it would be difficult for the families of landless fishermen to obtain potatoes and milk, so from 1883 onwards, she proposed several land resettlement schemes for small fishermen’s holdings. The first two comprised the hilly peninsulas and surrounding fringes of Bentangaval and Garrygall, which at that time belonged to the farms of Vatersay and Eoligarry to the south and north respectively … These were offered to cottar-fishermen living in the congested townships around Castlebay, with the aim of providing each family with sufficient land on which to grow potatoes for food, and winter fodder and grass for a cow’s milk. In addition each family was to share a small supplementary income from a Club sheep stock. In no way were the holdings intended to be large enough to detract from the tenant’s main occupation in fishing, and Lady Cathcart suggested that no houses be built on Bentangaval or Garrygall. Instead, rented house stances were offered in Castlebay itself, enabling the fishermen to be close to port [at pages 72-73].”
[39] If all that be correct, it would follow that when the Garrygall holdings came into being, there was no thought of tenant’s families living in close proximity to the burn and using it for domestic purposes such as washing bedlinen and the like. Margaret C. Storrie goes on to recount what she characterised as the consolidation, in 1939, by the tenants of Upper Garrygall, of their pieces of arable land:
“First of all two cattle parks were fenced off, one for Ledaig and one for Upper Garrygall … Then holdings for cultivation were unofficially lotted or consolidated into rectangular strips running up the valley side of Allt a Ghlinn and its tributary. This arrangement still holds to-day, and some of the consolidated holdings are wholly, others partially, fenced off. Many of the tenants now have houses on their consolidated lots. Thus the area has taken on something of the appearance of a crofting township [at page 80].”
[40] The foregoing quoted passages from this published source, as lodged with the court, were not specifically drawn to our attention by either party: the respondent did not seek to found on them, although they, on the face of it, may be interpreted as helpful to his case, and the applicant did not flag them up to us in order to take issue with their contents. This evidence, then, has not been properly tested, and for that reason, we do not feel able to place decisive weight upon it. But its existence reinforces us in our conviction that the evidence we have heard in this application is incomplete in many potentially significant respects. Neither party, by close of proof, was in a position to maintain that either the burn or the wall represented the west/east boundary between the townships of Glen and Garrygall for the entire length of that physical feature, and neither side could provide a coherent explanation as to why one stretch of the boundary, but not another, should be the river (or the wall, as the case may be). Whilst there are weak inferences to be drawn from parts of the evidence that might be marshalled to make out a case one way or the other that the boundary between the Glen and Garrygall townships was, in the vicinity of the disputed area, either the river or the wall, we are far from being persuaded that the disputed area necessarily is part of either croft 26 Glen or croft 16 Garrygall. We think, on the evidence we heard, that it might with equal legitimacy be inferred that the area between the burn and the public road under scrutiny in this application was part of the Glen Common Grazings, just like the site that was abstracted therefrom to provide a house site for the reservoir keeper back in the day.
[41] We would, accordingly, characterise the body of evidence that has been placed before us in this application as patently incomplete and ultimately inconclusive. It follows that we are of opinion that this is a case in which section 14(6) of the 2010 Act applies, in that (a) the application challenges the registration as to [part of] the [eastern] boundary of croft 26 Glen, and (b) the evidence available to the court is insufficient to enable that boundary to be clearly determined. That conclusion opens the door to the court, if making an order that the entry in the register relating to croft 26 Glen be modified, declaring that boundary “to be that which, in all the circumstances, it considers appropriate”: section 14(5) of the 2010 Act.
[42] We may say that we do not find the provisions of sections 14(5) and 14(6) of the 2010 Act easy either to construe or to apply, and we are conscious that neither in this application nor, so far as we are aware, in any previous challenge to first registration, has the court been favoured with full and considered submissions thereon. In the order we issued on 23 December 2020 (following a diet of debate) in MacDonald v Walker (RN SLC/32/18), a challenge to first registration concerning a croft on South Uist, we looked forward, at paragraph [31] of the note that accompanied our order fixing a diet of proof [before answer]:
“as and when the conditions in section 14(6) of the 2010 Act are held to apply in a case before the court, to being addressed on the meaning of “appropriate” as it is used in section 14(5) of the 2010 Act, and on what matters the court may take into account, under the canopy of that term, in exercising its section 14(5) discretion. We would also welcome being addressed, in a suitable case, on what the insertion of the adjective “clearly” before the word “determined” adds in section 14(6)(b) of the 2010 Act.”
[43] The hearing of that debate, and the issue of that order and note, post-dated the hearing of the proof in this application, taking place whilst we were at avizandum: the proper meaning and effect of those highlighted provisions remain up for debate in any future case in which they are engaged. Parties, quite understandably, were not in a position to assist us greatly in construing and applying sections 14(5) and 14(6) of the 2010 Act, and in the absence of developed submissions thereon, we shall do no more in this note than expand briefly on what seem to us to be the principal areas of difficulty in connection therewith. As the English Premier League has discovered with the introduction of the concept of “clear and obvious error” as the criterion for recommending the overturn of a subjective decision of the on-pitch referee by the VAR (Video Assistant Referee), what is clear to one person may not be clear to another, and thus, determining whether an error crosses the “clear and obvious” threshold may become a separate source of controversy.
[44] In the context of section 14(6)(b) of the 2010 Act, the court has to decide, before resorting to exercise of the power conferred by section 14(5) of the 2010 Act, whether the evidence available to it is “insufficient to enable any boundary to be clearly determined.” Is the insertion of the word “clearly” into that provision intended to add something to the test to be applied by the court that would not have been there if section 14(6)(b) had referred merely to “insufficient to enable any boundary to be determined”? And developing that point, how does section 14(6)(b) relate to the ordinary civil standard of proof, of the “balance of probabilities”? Scottish law historically has been resistant to recognising the existence of what might be termed intermediate standards of proof between the civil and the criminal (“beyond reasonable doubt”). As for the meaning of “appropriate”, as the word is employed in section 14(5) of the 2010 Act, the issue is the potentially limitless scope of that term. The question, in particular, is begged, “appropriate” from what, or whose, perspective?
Conclusion and disposal
[45] Both parties to this application periled their respective positions on establishing that the evidence they adduced was sufficient to enable the boundary in dispute to be clearly determined. Neither advanced, as a fall-back position, any case as to where it would be appropriate for the court to declare the boundary to be in the event that we were not with them on their primary position. Whether section 14(5) of the 2010 Act contemplates that litigants involved in challenges to first registration might do so is a moot point that too might merit being ventilated in a suitable future case. For present purposes, we have taken the view that the test in section 14(6)(b) of the 2010 Act is met by a wide enough margin here for any nuances of meaning that may be discerned in that provision not to matter in the particular circumstances of this application. As to where it would be appropriate to declare the disputed boundary to be, we have no hesitation in placing it along the medium filum (i.e. mid-point) of the burn in respect of the short stretch that lies opposite the applicant’s croft’s road frontage.
[46] The principal considerations that lead us to that conclusion are the de facto separation of that tiny sliver of land from the usable part of the respondent’s croft, and its corresponding proximity to the applicant’s croft and house site. In circumstances in which the previously cordial relationship between the applicant and the respondent appears to have broken down, for the respondent to possess, as part of his holding, a for all practical purposes useless to him small area of land directly in front of the applicant’s home, would be a potential source of friction going forward that it would be in the interests of neither party nor their near neighbours for us to create. A possible countervailing consideration, given the seemingly infinite scope of the term “appropriate” in section 14(5) of the 2010 Act, might have existed if all of the previous registrations of crofts in the Glen and Garrygall townships had acknowledged a common boundary line, the maintenance of which might have been seen to be in the interests of the crofting communities of both townships, but that pass has already been sold, and the piecemeal nature of the migration of crofts onto the [new] register means that there is no means available to us of achieving the sort of consistency of approach to boundaries that, in an ideal world, might have been maintained.
[47] The unfortunate consequence of this piecemeal migration, in some instances, may be the creation of an incomplete mosaic of registrations, made up of “island” crofts separated from their neighbours by “no man’s land” strips of ground that effectively will slip out of crofting tenure. It is worth emphasising, in this context, that in modifying the entry in the register relating to croft 26 Glen in the manner we have, we are not, thereby, declaring that it is, instead, part of croft 16 Garrygall. Whilst the formal legal effect of our order is to remove the disputed area from the respondent’s registration, it does not thereby confer on it the status of part of croft 16 Garrygall. As and when the applicant seeks to register croft 16 Garrygall, his registration potentially would be vulnerable to challenge, in its turn, at the instance of any person to whom notice has been given under section 12(1) (Notification of first registration) of the 2010 Act or who otherwise is aggrieved by the registration of the croft to which the notice relates: section 14(1) of the 2010 Act. This is why we say, in paragraph [2] of this note, that our decision on this application does not set a precedent: in the event of such a challenge, we would, as a court, have to decide the case on the basis of the evidence then placed before us by the parties thereto, assuming that the challenger could demonstrate an interest to make the challenge (cf. Macaulay v Morrison 2018 SC 636) and the facts and circumstances of the challenge were not such as to found the peremptory plea of res judicata (i.e. that the substantial merits of the cause have already been decided by a court of competent jurisdiction in an action about the same subject-matter on the same grounds between the same parties or parties having the same interest: Esso Petroleum Co. Ltd. v. Law 1956 SC 33 per Lord Carmont at page 38) against the challenger.
Expenses
[48] We have held that the entry in the register relating to croft 26 Glen should be modified, but we have not found as a matter of fact that the area of land we have ordered be removed from the registration in consequence of the modification of the boundary we have ordered instead falls to be acknowledged as forming part of the applicant’s croft at 16 Garygall. In such circumstances, we presently incline to the view that expenses should be dealt with on a “none due to or by” basis. We are, however, conscious that at the conclusion of the hearing, we did not entertain submissions from the parties on expenses. Accordingly, in our order, we have allowed parties twenty-one days within which to lodge any motions and submissions they may care to make in relation to expenses, in the absence of which we shall issue an order disposing of expenses in the manner indicated.