Decision of the Scottish Land Court

R G & E M Kershaw (Applicants) v Assynt Crofters’ Trust & Others (Respondents)

Case reference SLC 128/13
before
Lord Minginish, Chairman, and Mr John A Smith
3 February 2015

[1] Roger Gordon Kershaw and his wife, Eva Maria Kershaw, have applied to the court to have the eastern boundary of their croft at 295 Clashnessie determined. They are joint owners of the croft and are owner-occupier crofters in terms of sec 19B of the Crofters (Scotland) Act 1993 (“the 1993 Act”). The croft’s eastern boundary is with the Clashnessie Common Grazings and three of the graziers, Roderick Kerr, Kenneth MacKenzie and David Slator, have entered appearance, opposing the boundary proposed by the applicants. Mr Kerr is Chairman of the Clashnessie Grazings Committee, Mr MacKenzie is Clerk and Dr Slator is a member of the committee. We heard the application at Lochinver on 25 November 2014 and carried out an accompanied inspection the following day. At the hearing the applicants represented themselves and the respondents were represented by Mr David Findlay, solicitor, Inverness. Mr Findlay did not attend the inspection. The landlords of the common grazings, Assynt Crofters Trust Limited (“ACTL”), have not entered appearance. In what follows, therefore, references to “the respondents” are references to the said Mr Kerr, Mr MacKenzie and Dr Slator.

[2] We heard evidence from Mr Kershaw, Mr Kerr, Mr MacKenzie and from Mr John MacRae, a local retired Ordnance Survey employee called by the respondents. Dr Slator was unable to attend the hearing owing to a bereavement but an affidavit of his evidence was allowed to be received. We found all of the witnesses credible and reliable; they simply differed, in good faith, as to where we should determine the boundary to be. Both parties had late productions and we allowed these to be lodged unopposed, becoming productions 38 to 43.

Evidence

Roger Gordon Kershaw (76)

[3] As he was unrepresented, initial questioning of Mr Kershaw was by the court. He described himself as a crofter who also did some academic writing on Southeast Asia. Whilst having no family connections with the Highlands he had lived in Assynt for 21 years and at 295 Clashnessie since November 2003. He lived there with his wife. The croft at 295 Clashnessie had been tenanted by an Alistair MacLeod and Mr and Mrs Kershaw had acquired a house site on it in 2002 and had then bought the remainder of the croft from ACTL as Mr MacLeod’s nominees in 2008. The croft had been in Alistair MacLeod’s family for many years prior to the sale.

[4] Mr Kershaw identified production 1 as a copy of the Land Certificate plan attached to his registered title to the croft. Production 2 was a Field Identification System (FIS) Aerial Map showing the eastern boundary as a yellow line, being the same line as shown in red on the Land Certificate plan. The dotted line A-B-C had been entered on production 2 by Mr Kershaw. A-B showed a length of fencing erected by a contractor engaged by Mr and Mrs Kershaw. B-C represented the line of the rest of the boundary as they believed it to be.

[5] When purchasing the croft they had employed a solicitor. Whilst Mr Kershaw could not remember if he and his wife had been shown a copy of the title plan at that time he thought it inconceivable that the boundaries would not have been discussed. They and their solicitor had been using the Napier blueprint as the basis of their common understanding as to where the boundaries were. [This was the first of many references in the evidence to what was called, variously, the “Napier blueprint”, “Napier plan”, and “Napier map”. We consider its provenance in our discussion section below. References in what follows to “the Napier line” are references to a dotted line on this plan which the respondents say is the eastern boundary of 295 Clashnessie.] He and his wife had not been aware where, exactly, up the hill to the east of the croft the eastern boundary lay. They had not been sure, where, on the ground, the line shown in productions 1 and 2 ran, but had thought it to be much higher on the ridge than the respondents were saying. It had not been measured at the time of purchase but, then, at the time of purchase there had been no issue with the whereabouts of the boundary. It had only been when the land was measured for Integrated Administration & Control System (IACS) purposes, and a FIS map prepared, that they had realised that there was a discrepancy between where they had understood the boundary to be and the line shown on that map. That had been in 2013, by which time the stretch of fencing from A to B on production 2 had already been erected. They had understood the line of that fence to have been accepted by all concerned.

[6] Production 3 was a copy of the Napier plan, which had been supplied by ACTL and which he had probably sent to his solicitor at the time of purchase. It showed the Napier line as a broken line. However, Alistair MacLeod had been convinced that the boundary was the top of the cliff, whereas the yellow line on production 2 did not follow the top of the cliff. It had only been when shown the IACS plan that the witness and his wife had become aware of the discrepancy. At the time of the croft purchase there had been no issue as to its boundaries so no one had come out to inspect or measure the land being bought. Everything had been done on the basis of the Napier blueprint and he and his wife had never been asked to give distances up the hill (for the eastern boundary).

[7] Production 28 was a map which had been prepared by Claire Gill, an employee of the Scottish Government Rural Payments and Inspections Directorate (SGRPID) at their Golspie office, who had carried out a Global Positioning System (GPS) survey of the land. She had attempted to walk the yellow line shown on production 2 and plot it on the map. She had also plotted the line of the fence between A and B. Mr and Mrs Kershaw had then had the area surveyed by John MacRae and he had found the Napier line to be on top of the hill opposite the old croft house but it was clear that further north it ran downhill from the ridge.

[8] Asked by the court why he thought the line B-C on production 2 to be correct, that was partly based on what he had been told by Alistair MacLeod. He had understood from Mr MacLeod that the boundary followed the top of the cliff. He had known Alistair MacLeod for 6 years prior to purchasing the croft. They had become best friends and had enjoyed many a jolly ceilidh together. There had been discussion, first about buying a part of the croft, and eventually finishing with them buying the whole croft. Alistair had told them the croft went to the top of the hill.

[9] Asked by the court if there was any other basis for their belief that the boundary ran along the top of the cliff, Mr Kershaw explained that he and his wife had also been told this by Alan MacRae and Iain MacKenzie. That information had come directly from Mr MacRae and Mr MacKenzie because there was already, at that time, tension beginning to arise as to where the boundary was. This was because Mr Kershaw and his wife had fenced a big meadow to the east of the house for Highland heifers. They had done so with the full consent of Alistair MacLeod. They had taken steps to fight bracken in this fenced area, picking it by hand. Possession of this area had been regarded as a provocation by Mr MacKenzie and Mr Kerr, who maintained that it was part of the common grazings. They had come and demanded to know what he and his wife were doing. Kenny MacKenzie had said that the boundary was the Bordans track (shown as leading to the southmost of the two green areas on production 1, the site of what the witnesses called the “Bordans” house). However, Mr and Mrs Kershaw had carried out some basic measurements and found that, wherever the boundary was, it was to the east of the track. They had got John MacRae to check and he had agreed with them although exact measurement had not been undertaken. At that point they had decided to believe Alistair MacLeod over Kenny MacKenzie. They had later called in John MacRae to carry out more sophisticated measurements which confirmed that the area then in dispute was part of the croft but they had not asked him to measure to the top of the hill.

[10] At this point Mr Kershaw produced a written statement of his intended evidence and we adjourned to have it copied for Mr Findlay and the court. We then invited him to read this statement which he did. The statement is retained by the court but we go on here to note its principal points.

[11] In making the application to the court Mr and Mrs Kershaw had simply been looking for a “determination” of the boundary. The application should not be seen by the court as a dispute, but that was perhaps naïve: there had been a long history of local hostilities, albeit with a different focus.

[12] Mr MacKenzie’s present reliance on the Napier boundary was very different from his original position. He had previously asserted that every inch of land east of the north/south running dyke shown on the plans was common grazings, including the Bordans track. Mr MacKenzie had now “shifted uphill” from the dyke to the Napier line. This cast doubt on his reliability. Reference was made to correspondence from the Grazings Committee to the Kershaws asking them to remove this earlier fence, which was only just uphill from the north-south dyke.

[13] Asked by the court as to what the dyke had been for, if not a boundary, Mr Kershaw thought it had been for stock control. The dyke was already shown on the 1873 OS map. The land to the west of the dyke was primarily lazybeds, a very fertile piece of ground, so the dyke had probably been to keep neighbours’ sheep off it. The reason for not erecting the dyke further up the hill was probably that to do so would have been difficult. The dyke was still visible today. Dykes were not common in Clashnessie, whether as boundary markers or otherwise.

[14] Where the cliff top swings eastward the Napier line ceased to follow it but “launch[ed] eccentrically into space” and headed for a boulder field. It did not follow a rational line. It was necessary, at this point more than any other, to look for other criteria for fixing a rational boundary. Reference was made to production 15, a copy of two pages of a letter Mr and Mrs Kershaw had received from Alistair MacLeod in 2012 narrating a challenge made to his great-uncle, Cathel Kerr, and Alistair’s father, John, when working on the hill by an uncle of Mr MacKenzie’s. Cathel had gone to see the then Factor, Major Farran, and got confirmation that the whole of the hill belonged to the croft. That had been in 1955. When they had erected the fence along the cliff top in 2011 (the A-B fence) they had been building upon “the authority of 1955” and their fencer had pointed out various features up there which gave him historical justification for what in any case common sense dictated. Unfortunately Mr MacKenzie had not engaged with the Kershaws about the fence as Mr Kershaw had requested.

[15] Despite his use of the term “Napier line” it was doubtful whether the map in question had anything to do with the Napier Commission. The historian Malcolm Bangor-Jones had suggested to him that the 1880s survey of crofts, which had remained definitive for most boundaries to this day, had been commissioned not by Napier but by the Duke of Sutherland. This made it slightly more plausible that the surveyors, working no doubt with the Factor, had seen the cliff-top as giving a sensible guideline, but no more than that, for a croft boundary. How a departure from this line by drawing a line across the hill in the area of the northeast brae had come about was a matter for speculation, his own idea being that, in the absence of any clear boundary features, the broken line drawn in the 1880s simply enclosed an acreage of ground related to the rent fixed in 1852, when the village had been “lotted”. He had a theory about that but since he did not claim it as probable fact we need not narrate it. In any event the Napier line was impractical as a fencing line. Putting a fence across the northeast brae would be very difficult. It was difficult terrain. Their fencer, David MacPhail, was no mean fencer but he had wanted to run the fence along the top of the hill because he did not think he could put it anywhere else.

[16] In Mr Kershaw’s submission the eastern boundary marked on the Napier plan and his own title plan had been intended, in the 19th century, as only a guide. It was drawn as five totally straight segments of varying length. There was “no justification for using technologies such as GPS to lend a bogus scientific certainty to what was never drafted with the intention of staking out the land for a dyke or fence, unnecessary as such artefacts could be in the late nineteenth century, when sheep were not confined to their crofts or even township in-bye in the warmer months”. Yet, misleadingly, their own title plan, with its discreetly dotted line, had begun to consolidate the conspicuously broken line of the Napier plan into a firm boundary whereas in the nineteenth century common sense had reigned and boundaries had been left to be fixed according to community perception and family knowledge, with confirmation, if necessary, from the Estate Factor. The fact that all the land had then been owned by the Duke of Sutherland bestowed on his Land Officer, acting on his behalf, “unassailable authority” in the matter of determining or adjusting boundaries.

[17] At a later point in his evidence we asked Mr Kershaw as to the significance he was attributing to the use of a broken, as opposed to continuous, line to depict the eastern boundary on the Napier plan. It is convenient to record his answer here. He said that what the broken line signified was (a) that there were no corresponding physical features on the ground and (b) lack of certainty as to the precise line of the boundary. He did not mean to infer uncertainty as to the extent of the croft – there was no doubt as to the acreage being enclosed – only uncertainty as to the precise line of the eastern boundary.

[18] Mr Kershaw then made reference to productions 16, 17 and 18, being, respectively, an email and two letters from Mr MacKenzie dated 2 June, 26 August and 4 October 2013. These, he said, showed that there was no hope of reconciling the Kershaws’ and the Grazings Committee’s positions not only in relation to the line of the fence already erected between A and B but its intended continuation from B to C. The committee’s acceptance of the Napier line as the boundary could be seen crystallising in the course of these communications although the Clerk speaking of the correct line being “at the bottom of the cliff” had made the witness and his wife suspect that Mr MacKenzie’s long-standing aim of fixing the boundary at the dyke, as opposed to the foot of the rock face, was still live. In order that the court could make its own judgement as to the “obnoxious” qualities complained of by Mr MacKenzie in production 17 the Kershaws had today lodged two letters from themselves to the respondents dated 3 and 19 August 2013 (productions 42 and 43).

[19] Apart from what had been said by the Factor in 1955 the applicants were also relying on evidence in the way of a number of posts and the remains of low dykes which the court would see on inspection. These were evidence of where the eastern boundary had been regarded as being by tenants of the croft. They included steel posts drilled into the rock, something which would hardly have been done without the authority of the Factor. They supported the A-B-C fencing line but there was no evidence that they themselves had been used for fencing purposes. They were more like boundary markers erected well before fences had become standard in Assynt. The Napier line was, therefore, neither authoritative nor meaningful except for the acreage it adumbrated which was confirmed by the Estate rent book. This had been neither more nor greatly less than 13.185 acres before decrofting of any part had taken place. Whilst, on the one hand, he did not regard the Napier line as authoritative or meaningful, on the other, there was no need to manipulate it creatively by, for instance, resort to sec 53A of the Act.

[20] This prompted the court to seek clarification of whether sec 53A was, to any extent, being relied upon. Mr Kershaw explained that he had been told by our Principal Clerk that sec 53A could only be invoked where there was real doubt or uncertainty. On further consideration, in the light of that, it had seemed to him and his wife that there was enough evidence – in the way of markers on the ground – to show where the boundary was. That had crystallised to the point of near-certainty and they had begun to think that they did not need sec 53A. However, if the court felt it needed to use sec 53A it should adopt the A-B-C line as an appropriate boundary.

[21] Mr Kershaw denied the accusation of land-grabbing made in, for example, production 16. In 2009 he and his wife had given up an area of the croft adjoining the beach. There had also been de facto surrender of a long strip along the burn which Mr MacKenzie’s and Mr Kerr’s sheep now grazed. In 2013 they had proposed a handover of the “pan-handle” at the far southeast end of the croft as part of negotiations in relation to the eastern boundary (production 42). The pan-handle was not land of no grazing value.

[22] Such matters should not be salient features of a boundary case but they were being mentioned because the respondents had been at pains to make his and his wife’s character a relevant criterion for judging the application and had done so in the most negative way possible. Thus the agricultural value of various segments of the croft was regarded as irrelevant by the respondents, for whom it was a matter of principle to stick by the Napier line. The taunting reference to the fact that he and his wife were not shareholders in the common grazings made in production 16 was only possible because a militant campaign had been mounted to prevent them getting a share which Alistair MacLeod had been under contract to assign to them. Defamatory statements had been made about him and his wife to the Crofters Commission in 2010 and peddled around the township to such an extent that he and his wife had taken legal advice about possible action. After a cost-benefit analysis they had decided not to pursue legal action.

[23] The written statement of evidence concludes with reference to destructive activity having taken place on the croft, encouraged by the Chairman and Clerk of the Grazings Committee and to an allegation said to have been made by Dr Slator’s wife that Mr and Mrs Kershaw had been involved in a previous boundary case, an allegation which was baseless and calculated to discredit their position in the present case. The court should check the truth of this for itself if there was the slightest chance of that imputation being given credence. What had happened, however, was that a chance of the Kershaws getting the tenancy of a croft in Achmelvich had been sabotaged due to the politics of ACTL.

[24] In cross examination Mr Findlay referred the witness to production 9, a copy of an extract from the Register of Crofts kept by the Crofting Commission. It refers to 284 and 295 Clashnessie. Asked whether the information it contained was accurate, Mr Kershaw explained that it had been sent to him by the Principal Clerk when questions had arisen about possible dual ownership of a dual croft. He had not looked at it in detail but, at a glance, he thought it was accurate. Referred to production 22, the title to 295 Clashnessie as recorded in the Land Register, he accepted that it stated an area of 4.94 ha. He could not confirm the accuracy of that figure as he had not done the hectare to acre conversion. He accepted that the plan attached to the title showed accurately the land in his and his wife’s ownership and acknowledged that there was a conflict between what was recorded in the Land Register and what they were claiming in this application. He wanted the boundary fixed somewhere which was “historically more realistic”. He and his wife had come to court to have a more rational boundary fixed.

[25] At this point Mr Findlay moved the court to restrict the application to the question of determining whether the boundary of the croft was the same as that shown on the title plan. That was on the view that the applicants had no title or interest to assert that the boundary was further east than that. That was because they had never been tenants of the croft; they had only become owners of the land shown on their title plan. They had no other locus; they were neither tenants nor owners of any land beyond their boundaries, nor shareholders in the common grazings. Mr Findlay explained that his point had occurred to him only at a late stage, too late to give notice of it in his pleadings. We advised Mr Findlay that he could return to that point in submissions but in the meantime we would continue with the evidence.

[26] Mr Kershaw agreed that the title plan and the Napier plan both showed a broken line as the boundary, but they were different styles of line. The Napier line was like Morse Code but the dots in the title plan were closer together. He did not accept that they showed the croft boundary very clearly, whether or not that boundary corresponded to a dyke or other physical feature.

[27] Referred to production 37, the disposition in favour of himself and his wife, he accepted that the words “which two areas of ground … extending in total to … 5.049 ha or thereby form the croft land pertaining to the croft Two Hundred and Ninety Five Clashnessie” showed that the deed intended to convey the full extent of croft 295. Referred to a fencing obligation contained in this deed, Mr Kershaw confirmed that it had not been discharged: they had made a late start on it and the fence they had erected had been challenged so it had not been possible to complete it. He accepted that the land he and his wife owned did not extend far enough to include the land on which they had erected the fence. But they wanted to establish that the true line was at the top of the hill. He accepted that it appeared they had erected the fence on land they did not own. They had been unwilling to fence the boundary shown on the title plan because of historic understandings and agreements which pointed to the boundary being further east.

[28] These understandings had been derived from Alistair MacLeod, Allan MacRae and Iain MacKenzie and included what Major Farran had said. Allan MacRae had passed away and he had not thought of asking Iain MacKenzie to give evidence. Allan would have been the one he would have asked, were he alive. He had contacted Alistair MacLeod to ask if he would be willing to be a witness but had received no reply, which was not surprising because he had not responded to the intimation of this application either. Mr Kershaw had not realised that he could have compelled his attendance. Another reason was that Alistair’s family had not liked the fact that he had sold the land to incomers.

[29] Asked what authority he had had for erecting a fence on land he did not own, Mr Kershaw said that it appeared that he had the consent of the Grazings Clerk but the Clerk had not turned up to walk the boundary. Their solicitor had told them that they should erect the fence where they thought suitable. He was not suggesting that their solicitor had envisaged the fence being erected so far from the title boundary line. Their discussion of the matter had been in general terms.

[30] Asked whether it had only been when the GPS survey had been carried out that he had realised the discrepancy, Mr Kershaw said that he had been aware of it when the fence had been put up. He had been aware then that it had been “out of line”. That was why they had needed the consent of the Grazings Committee. It was now being said that they had made no attempt to get it. Asked whether he was maintaining that they had got it he said the committee was represented by the Clerk and if the Clerk did not inform the other members of letters of correspondence received what was one to do?

[31] Mr Kershaw was referred to production 42, a letter from him and his wife to Mr MacKenzie, Mr Kerr and Dr Slator dated 3 August 2013 and to reference within it to a gain of 0.58 ha if the fence was permitted to follow his desired line. He agreed that the extent of this gain was shown as the cross-hatched area on production 28. The croft went beyond the Napier line: it had more area in the northeast corner than shown by the Napier line. That could not be denied. He agreed that the Land Certificate plan was an accurate reflection of the 1887 Napier plan boundaries. But he and his wife were asking the court to re-visit the Napier plan. It was misleading. It started from a false premise. The false premise was that a straight line could represent anything on the sort of terrain one had in Clashnessie.

[32] Mr Findlay then referred to production 34, an application for the revaluation of holdings made to the court in 1932 by the Factor of the Assynt Estate. It shows 295 Clashnessie as tenanted by a Roderick Kerr and extending to 4 acres, 2 roods and 3 poles of in-bye and 8 acres, 2 roods and 20 poles of out-run. Mr Findlay had done calculations which, he said, showed these areas to be largely consistent with the area shown on the title plan. Mr Kershaw said he had no reason to think these historic areas were wrong. On the contrary he accepted the validity of the areas found at the first rental valuation of the croft in the 20th century. There had been consistency as to area ever since. But the point was where could one draw what he called a “valid line” on which a fence could be built? If the area to be taken in was expanded beyond the Napier line there had to be negotiation and exchange of land. Since becoming aware of a problem they had tried to involve ACTL, in the persons of Allan MacRae and Kirsty MacLeod, with a view to resolving it by negotiation. However, Allan had died and there had been a change in the structure of the ACTL with the administrator being downgraded, all with the result that they had never been able to involve the Trust in the way they would have wanted to.

[33] [At this point it became apparent that Mr John MacRae, the respondents’ witness, an elderly gentleman, was anxious about having to wait any longer to give his evidence and Mr Kershaw kindly consented to having Mr MacRae’s evidence interposed into his own. However it is better to set out Mr Kershaw’s evidence as one whole, rather than in two parts.]

[34] On resumption of his evidence Mr Kershaw was referred to production 35, a copy of an application for interponed authority for the letting of smallholdings made to this court by the Estate Factor in 1932. It shows the croft as tenanted by a Roderick John Mackenzie and to extend to the same area as in the earlier productions referred to. Mr Kershaw readily accepted that that was so: the acreages were always the same, right the way through. Asked whether he considered that these historical areas should have any bearing on the boundary determination or be disregarded, he said that he and his wife were asking for something not normally asked for: something daring and innovative.

[35] Mr Kershaw accepted that the evidence of what Major Farran had said was hearsay. Indeed Alistair MacLeod’s own knowledge of it had been hearsay, he having been told about it by a third party. But he (Mr Kershaw) was certain that Estate Factors had authority to determine boundaries. Asked whether it was not this court which had that authority, he said that that was so once the matter was brought to court but otherwise it was the Factor who mediated in disputes and resolved them.

[36] In terms of the line of the fence, on the whole that was easier at the top of the cliff where one could get a reasonably straight line. Asked about “doing deals” to fix boundaries, he explained that he had not had in mind exchanging property of value. What he had had in mind was an agreement in which both sides might compromise. Asked whether he thought it appropriate for the court to have regard to such dealings, he said that he had started out with the assumption that certain discussions would be taken into account and viewed sympathetically.

[37] Mr Findlay suggested that if the Kershaws had a problem with the boundary their recourse was against ACTL, Alistair MacLeod, their solicitor or the Registers of Scotland but Mr Kershaw said he would not like to take action against them because they had acted in good faith.

[38] Mr Findlay referred to production 12, a letter from Mr Kerr to Mr and Mrs Kershaw’s solicitors dated 31 January 2008. The witness denied that this was evidence that a potential difficulty as to where the boundary was had arisen before they had bought the croft. That letter was concerned with different issues. At that time he and his wife had begun to negotiate for the purchase of the croft. Alistair MacLeod had asked them where they would like the fence to be. But at that time they had not been addressing the precise line of the boundary or even the precise area. At that time the boundary had simply not been an issue. He accepted that the fact that matters had not been checked at the time of purchase, although unfortunate for him, did not change where the boundary was.

[39] He and his wife intended to realise the croft’s further potential. One way of doing so was by the promotion of forestry but he denied a suggestion from Mr Findlay that they intended to plant trees on land they did not own. The trees were to be planted in the southeast area of the croft, in an area well within the recognised croft boundary.

[40] After cross-examination we allowed Mrs Kershaw to ask certain questions, for fear of anything having been omitted. Her husband agreed with her that the intended fence would not be continuous: there were points where the existence of cliffs meant that a fence was not required. Mr Kershaw confirmed that he and his wife had been in touch with the ACTL but the person who had been over-seeing the Trust’s administration had made clear that the Trust had no interest in getting involved; they were definitely keeping at arm’s length from this dispute.

[41] Mr Kershaw’s evidence concluded with an account of the considerable work he and his wife had done to improve the croft.

John MacRae

[42] Mr MacRae was a retired employee of Ordnance Survey. Although not a Chartered Surveyor he had spent most of his working life working with plans. He had drawn up plans for croft feus and house sites. He had spent most of his working life in the Highlands. The plan at production 3 was of land at Clashnessie, which was familiar to him because he had drawn up plans for Alistair MacLeod. He identified production 29 as the plan he had prepared. As far as he was concerned it represented the boundaries of the croft.

[43] Mr Findlay asked him about an alleged instance in 2003 when Kenneth MacKenzie was said (by the applicants) to have challenged Mr MacRae for trespassing on his land and asked him to move off the common grazings. He could not remember that. Mr MacKenzie could not do that anyway. It was news to him. In cross-examination he said it had never happened. Prompted by Mr Kershaw as to it having happened when the Kershaws had asked Mr MacRae to check where the boundary represented by the Napier line was, he still could not remember it.

Roderick Kerr (66)

[44] Mr Kerr was a retired police officer who had moved to Clashnessie in 2003. He was a crofter and shareholder in the Clashnessie Common Grazings, of which he was Chairman. As a youngster he had visited Clashnessie every year with his parents at least once and then, later, with his own family, had come at least two or three times a year. He was an active crofter with livestock.

[45] He had first become aware of the matter under discussion in this case when Mr and Mrs Kershaw bought their house site and fenced it. He and Kenny MacKenzie had believed the dyke to be the eastern boundary of the croft but they had gone to the Estate Office and seen the Napier map which showed that the dyke was not the boundary. After Mr and Mrs Kershaw had bought a plot of land on the croft he thought they had fenced in part of the common grazings along with this land. It was thought at that time that the boundary was the dyke to the west of the Bordans road. After inspection of the Estate’s records, where they had seen the Napier plan blueprint, it was clear that the boundary was further east. He had been under the impression that Mr and Mrs Kershaw had fenced off too much but the map showed the boundary to be further east. That would have been in 2003 or 2004.

[46] The present issue had arisen only in 2008 when Mr Kershaw intimated that he was having to fence the croft. Asked whether Mr Kershaw had approached the grazings committee about that, the witness could not recall if that had happened or whether the information had come from a chance meeting in the village. Mr Kerr’s recollection was that Mr Kershaw had agreed to erect the fence along the line of the yellow line on production 2.

[47] Asked what his own understanding of the whereabouts of the croft’s eastern boundary had been, Mr Kerr said that he had always been under the impression that it was the western edge of the Bordans road. He had asked his father about it and he could not remember there being any boundary marks above (east of) the road.

[48] He could recall no further contact with anyone about the intended fence until, working on his croft one day, he had seen David MacPhail fencing on the hill. He had asked him what he was doing and Mr MacPhail had told him he was putting up a fence for Mr and Mrs Kershaw. There had been no consultation with the grazings committee about the line of the fence. He and Kenneth MacKenzie had gone to Mr and Mrs Kershaw’s house and told them there was to be no more fencing but that had been ignored.

[49] Shown production 2, he described the fence erected from A to B. Mr Kershaw had told him that he intended continuing the fence to the southern end of the croft and that David MacPhail had marked out the intended line of the continuation with canes. He had gone to find these canes and had found them to be on the top of the hill and, therefore, outside the boundary. In his opinion the boundary was the yellow line on production 2.

[50] Referred to productions 3 and 23, he thought both outlined the boundaries of croft 295. He had become familiar with the map on which production 3 was based when he had visited the Trust office after moving up to Clashnessie. Asked if he was familiar with where that line was on the ground, he said it was difficult because there was no path or other mark shown on the Napier map; nothing to show where the line ran.

[51] His relationship with the Kershaws had become very sour. The Grazings Clerk had written to them on two occasions asking them to remove the fence. The committee had disagreed with Mr Kershaw and had maintained its opposition to the line of the fence. Mr and Mrs Kershaw had chosen to ignore them.

[52] He knew Alistair MacLeod. Mr MacLeod still had four shares in the grazings. He had not discussed the whereabouts of the boundary with Mr MacLeod. There had never been an issue about the boundary when Mr MacLeod had been tenant but when he was selling the croft to Mr and Mrs Kershaw he had said “I’ve just thrown in that land with the sale”. When saying that he had waved in the direction of the hill. The witness took this gesture to indicate the inclusion of land above the road.

[53] Asked about features on the ground which might indicate the boundary, there were three metal posts and one wooden one. Well away from the Napier line, their location suggested they were used to stop animals going down into gullies. Their alignment was at right angles to the A-B line. There were also the remains of dykes up on the hill which were also at right angles to that line. He identified the location of the posts on production 2. A dip in the ground beyond the ridge of the cliff suggested that these posts may have been the end-points of fences protecting a sheltered area for work with animals, to save taking them down into the village. He seemed to be identifying two such areas which, he thought, had been used as holding-pens allowing work with animals to take place or simply offering the animals shelter.

[54] Asked, under reference to production 24, why the area east of Mr and Mrs Kershaw’s house would be part of the common grazings, he said that there were a couple of gullies in that area coming down from the high ground and when sheep had been gathered on the hill they came down through these gullies and it was much easier for the gatherers to follow them down. These gullies were presently intersected by the A-B fence, which caused problems when bringing sheep off the grazings. If they went down into these gullies, as, naturally, they were prone to do, they got caught by the fence so that the gatherers had to go down into the gullies and chase them back on themselves. All of that was risky for the gatherers and wasted time. If the fence was taken away, as it would be if the Napier line formed the boundary, these problems would disappear and the sheep could be taken off the hill safely and quickly via these gullies.

[55] The alternative, if the boundary was where the fence had been erected, was to take them down where the common grazings came down to the carpark at the bay, which would take 20 minutes longer and was unsafe for the gatherers because it was so steep. The Napier line was a more practical boundary from the shareholders’ point of view, both in terms of allowing sheep to be brought off the hill more easily and ease of putting wooden posts into the ground.

[56] It had taken Mr and Mrs Kershaw a long time to put up the fence at the top of the cliff and he himself would not like to put up a fence there. It was much easier to erect a fence on the lower ground. There were a lot of cliffs, precipices and gullies east of the blue line on production 24 (which corresponds with the yellow line on production 2).

[57] At the close of his examination-in-chief we clarified with Mr Kerr whether he had been instructed to appear on behalf of the grazings committee. He said that he had not; that he was representing himself “and future generations”.

[58] In cross examination Mr Kerr confirmed that his first disagreement with Mr and Mrs Kershaw had been in 2003-2004, not 2008. That had been about the fence around their garden. At that time he had not been aware of the yellow line boundary. He agreed that the FIS photographs had not appeared until early 2013. Asked what his authority had been for telling the Kershaws in 2008 that they were making a mistake, the witness said it was the Napier plan. Referred to production 12, Mr Kershaw pointed out that in that letter (to Mr and Mrs Kershaw’s solicitor) Mr Kerr had said that the Napier map was no longer relevant. Mr Kerr explained that, by that time, for practical purposes, the maps in use were the Department of Agriculture IACS maps. He accepted that he and Mr MacKenzie had started removing the fence running along the eastern boundary of the Kershaws’ house-site. They had stopped and gone to check the position at the Estate Office, where they had found that the boundary was further towards the road. Reference was made to production 13, comprising two photographs taken when Mr Kerr and Mr MacKenzie had come to remove the garden fence. Mr Kershaw put to Mr Kerr that the true reason he and Mr MacKenzie had desisted was that Mr and Mrs Kershaw had told them that they owned the land but he maintained that what had happened was that he and Mr MacKenzie had gone to the Estate Office to check the position and seen the Napier blueprint there, showing the boundary to be further east.

[59] In re-examination and in questions from the Court Mr Kerr confirmed that prior to aerial photograph IACS maps becoming available they had used OS based IACS maps but these did not show physical features and that made determining the boundaries difficult.

Kenneth MacKenzie (75)

[60] Mr MacKenzie was a retired Head Teacher, an active crofter in Clashnessie and Clerk of the Clashnessie Common Grazings. He had inherited his croft from his uncle Rory about 24 years ago. He had been Clerk for some 18 years. He had used the grazings throughout that time – at one time for cattle as well as sheep – and was thoroughly familiar with it.

[61] The current dispute had started three or four years ago when Mr Kershaw had started to erect a fence along the top of the cliff east of 295 Clashnessie. In his own mind Mr MacKenzie was absolutely clear as to where the boundary was. That had not always been the case: at one time the common opinion had been that the Bordans road had formed the boundary. He doubted whether, at that time, any crofter in Clashnessie had seen the 1887 map. He thought that in his younger days everyone had thought the boundary was the road. The only person who claimed otherwise was Alistair MacLeod.

[62] He identified production 3 as a copy of the Napier map. Looking at it, the Napier line seemed to follow that of the dyke or, on the ground, the dyke seemed to correspond to the Napier line. (Production 3 does not show the dyke.) However, when Mr Kershaw had begun building his fence they had checked the position and found that there was land beyond (eastward from) the dyke which pertained to croft 295. The dyke was therefore within the croft.

[63] Production 3 did not show any contours and it was therefore hard to ascertain where the boundary it showed was on the ground. Only after the SGRPID GPS inspection had it been established that the boundary was further up the hill than originally thought. The broken line showed the boundary between the croft and the grazings. Asked why the Napier line went along the top of the cliff and then steeply down in a straight line, Mr MacKenzie thought this might have to do with gullies used to take sheep off the hill. It was a practical boundary. It was very hard to fence along the top of the cliff, where the terrain was up and down, but down below it was possible, and easier, to fence in a straight line.

[64] Production 28 was a map produced from the SGRPID GPS survey. The area hatched showed the land which Mr and Mrs Kershaw had taken from the common grazings and incorporated into their croft. Even if they were shareholders they would have no right to do that. The fence they had erected caused difficulties when bringing sheep down from the hill as they tended to follow the fence into a gulley from which they could get out only by going back on themselves. He would have to go down into the gulley to get the sheep back out. This was difficult and time consuming.

[65] Before the fence had been erected he had had a discussion with Mr and Mrs Kershaw on the hillside where they had been pulling up bracken, in the area shown hatched on production 28. This had been before the Kershaws had bought the whole croft. Mr Kershaw had said to him “I suppose you think I’m mad?” Mr MacKenzie had agreed and a conversation had followed. Mr MacKenzie was clear that as a result of this conversation Mr Kershaw had been “well warned before he built the fence”.

[66] Mr MacKenzie had not actually been aware that the fence was going to be erected until it appeared. His immediate reaction and that of others (we understood this to mean at least Mr Kerr but possibly other graziers as well) had been to want to go up the hill and take it down, but they had reconsidered. Instead, several times “when passing up and down the road” he and others had told Mr Kershaw that his fence was in the wrong place. But that had made no difference. So it had eventually been decided to hold a meeting to discuss the fence. Indeed several meetings had been held, none of them very productive, except that the construction of the fence had stopped. In the end it had been decided to get a GPS survey done. Mr MacKenzie had asked Mr Kershaw to have one done and he had undertaken to do so but, as it happened, SGRPID were carrying out a survey of the boundaries of the common grazings anyway. Mr MacKenzie had met the person who had carried out that survey and she had said that she had found the bottom of the cliff to be the boundary; that is to say, she had found the Napier line to go along the bottom of the cliff. Mr Kershaw had seemed taken aback by how much land he had taken in. Production 28 showed the position accurately.

[67] Production 22 was identified as the Land Register entry for 295 Clashnessie, as owned by Mr and Mrs Kershaw. This showed the correct boundary of the croft as it followed the Napier line. It showed that they did not own the top of the cliff. He had no quibble with this map. He had done quite a lot of map work with the Crofting Commission on this and other township maps, particularly since people had begun mapping crofts and common grazings for the new Crofting Register. There was nothing on the ground to determine the line of the boundary except at the southern end where the Napier line and the dyke meet. Under reference to marks shown on production 2, these represented two metal posts thought by Mr MacKenzie to mark the ends of dykes which had run at right angles to the cliff. They had nothing to do with the boundary of croft 295. They did not show the existence, at some time, of a continuous line running along the top of the cliff, as suggested by Mr Kershaw.

[68] The grazings committee had made its position perfectly clear to Mr and Mrs Kershaw. Although initially the Kershaws had carried on with the fence they had eventually stopped in the face of strong objections from the committee. The committee were not going to tolerate the continuation of the fence beyond point B on production 2. The yellow line on that production accurately represented the boundary if it was taken as running along the bottom of the cliff, which is where the person who had done the GPS survey said she “kept on finding it”.

[69] Mr and Mrs Kershaw had offered the panhandle at the southeast of the croft in exchange for the land being taken in further north. They had offered not to fence it in so that it could continue to be used as part of the common grazings. That had seemed pretty ludicrous to the committee: you couldn’t go changing boundaries on a whim and it would in any event remain part of the croft because it was within the yellow line. Mr Kershaw had said something about assessing the gains and losses but it seemed to the committee that he was getting all the gains and they were getting all the losses. The boundary was crystal clear. A boundary had to be based on something and in Mr MacKenzie’s opinion in this case it was the Napier map, drawn up in 1887, a year after the 1886 Act. That had to be accepted as correct because there was nothing else. Title deeds and IACS maps all agreed that this was the boundary. There was no room for deals.

[70] Questioned by the court as to his connection with Clashnessie, Mr MacKenzie said that he had been born in Culkein and had spent 18 years as Head Master at Achiltibuie. But during that time he had been able to give his uncle a hand with the croft work when visiting Clashnessie. He confirmed to us that he was appearing in this case both as an individual who was a shareholder in the common grazings and, as Clerk, mandated by the committee to appear on its behalf.

[71] Cross-examination began with reference to production 32, a map on which Mr MacKenzie had made shadings and annotations showing the relative positions of crofts 284 and 295 Clashnessie. These are shown as not being adjacent to each other; 295 is shown as having been sold to Mr and Mrs Kershaw, part of 284 as having been sold to a Mike Pearson and the remainder shown as not having been sold to anyone. Mr MacKenzie explained that part of 284 therefore remained tenanted by Alistair MacLeod.

[72] Production 32 also bears a note, written by Mr MacKenzie, saying that the map “does not show the 1887 boundary of 295”. Asked whether this plan had previously been used to propagate Mr MacKenzie’s claim that the boundary was the dyke, Mr MacKenzie denied that. He explained that he had been asked for evidence by his solicitor and he had made the note about the boundary of 295 at exactly the same time as the other notes.

[73] Production 30 had also been annotated by Mr MacKenzie but it appears to have related to work done, or being done, by Mr and Mrs Kershaw. Asked by Mr Kershaw where he had obtained it, Mr MacKenzie said he had no idea. The plan seemed to have been around for some time. Mr Kershaw said that he had urged Mr MacPhail, the fencing contractor, to give the plan to Mr MacKenzie but the witness could not remember. Mr Kershaw put it to the witness that Mr MacPhail had already informed him of Mr and Mrs Kershaw’s plans before the fence had been erected. Mr MacKenzie criticised the use of a go-between (Mr MacPhail) instead of Mr and Mrs Kershaw coming to speak to the committee directly.

[74] Mr Kershaw referred to pleadings lodged by the respondents before Mr Findlay’s involvement, being a response to the application on behalf of the committee, signed by Mr MacKenzie, Mr Kerr, Dr Slator, Ms Jenette Robertson and an Attorney on behalf of Donald King, dated 24 April 2014. Mr Kershaw queried how Mr MacKenzie had got this document signed and whether those who signed it had had actual capacity as committee members at the time. Mr MacKenzie said that the signatories had spoken together as a group, had held a meeting and had all agreed to sign it. It had been typed by him, he being the clerk. There had been discussion as to how to word it, following which he had put it together.

[75] Mr Kershaw then asked about the status of the committee in August 2014 and who comprised it. Mr MacKenzie said it was exactly same. Mr Kershaw put it to the witness that the post of Clerk had been vacant in August 2014. Mr MacKenzie confirmed that the committee had been disbanded for a short period due to a failure to register it timeously with the Crofting Commission. That had now been rectified and the grazings committee were properly registered with the Commission and he was again the Clerk.

[76] Mr MacKenzie insisted that there had been opposition from the committee at the commencement of the fencing in 2011. They had informed Mr Kershaw that the fence was in the wrong place. He accepted that at that time the committee had believed the boundary to be the old dyke but they now accepted that it was the Napier line as shown on production 2. He rejected a suggestion from Mr Kershaw that he was conflating two episodes, that no opposition to the fence had been intimated in 2011, that the first such intimation had been in 2013 as a result of Mr and Mrs Kershaw having had to replace a stretch of fencing which had been destroyed at that time and that at that time the committee had wanted the dyke to be the boundary.

[77] In re-examination Mr MacKenzie confirmed that the Grazings Committee had been opposed to the fence in both 2011 and 2013. Referred to production 30 and 32 he confirmed that crofts 284 and 295 had always been deemed to be separate crofts and that the purpose of 32 was to show the position of the two crofts in relation to each other.

[78] That concluded the oral evidence but we should also summarise Dr Slator’s affidavit.

Dr David Anthony Slator (62)

[79] Dr Slator describes himself in his affidavit as a General Practitioner, crofter and member of the Clashnessie Common Grazings Committee since 28 November 2005. He has lived in Clashnessie since June 2005. He is the joint owner-occupier of crofts 291 and 296 Clashnessie with his wife, Venessa Ling. He is an active crofter and regularly uses the common grazings.

[80] He had been aware of this dispute since 2011 when the Kershaws first started to fence their boundary at the northeast end of their croft. He had become aware of it through informal conversations, in social settings, with Kenneth MacKenzie, Clerk, and Roderick Kerr, Chairman of the grazings committee. Both Mr MacKenzie and Mr Kerr had expressed themselves opposed to the line of the fencing.

[81] As a member of the committee he had attended three meetings at which the Kershaws had been present. One of them had been in Stoer Village Hall on 30 September 2013 but he was unable to remember the dates of the other two. These meetings had allowed discussion of the fence which had already been built and the proposed line of further fencing. Maps had been used. The committee, including himself, had taken the view that the boundary should be that shown on the 1887 Napier Commission plan.

[82] A SGRPID GPS survey confirmed that the fence erected by the Kershaws did not follow the boundary line shown on the maps used by all parties at these meetings and discussion had taken place as to how this might be rectified. Following the 30 September 2013 meeting at Stoer a letter had been sent from the committee asking for it to be rectified within a year.

[83] Due to the discrepancy between the Kershaws’ fencing line and the line of the 1887 Napier boundary as plotted on the modern OS map following the GPS survey, he, along with the Chair and Clerk of the committee, had opposed the position of the fence along the cliff-top and its proposed extension at all three said meetings.

Submissions

[84] At the close of evidence it was agreed that, due to constraints of time, it would be preferable to have submissions in writing and these were duly received. The following is a summary of what they contain.

(i) Applicants

[85] The applicants’ submissions begin with a request that we take account of certain things said, or alleged to have been said, at inspection. This is not the practice of the court for very good reasons. One reason is that not everyone is always present at an inspection – Mr Findlay was not able to attend this one – and even when everyone is present things can be said to one member of the court outwith earshot of the other member (or members) and of the opposing party. Secondly, what is said on inspection is not noted except to the extent that it clarifies evidence given at the preceding hearing. Thirdly, an inspection is not a forum which lends itself to cross-examination of people as to things said. The purpose of an inspection is to let the court see the land that is in dispute and parties are there in order to offer the court any necessary clarification.

[86] Mention is also made of the fact that when Mrs Kershaw sought to speak at the close of the hearing, at a stage when evidence had been concluded, we said that she could make use of the written submissions to draw to our attention points she wished to make. She will have done so in the submissions now received.

[87] The first point made in the applicants’ written submissions has to do with something allegedly said by Mr MacKenzie at inspection. We take no account of it for the foregoing reasons. If it was said, it was not as part of Mr MacKenzie’s evidence.

[88] The applicants pray in aid the evidence of the respondents as to the metal posts and dyking at the top of the hill representing holding areas for stock rather than a boundary. The point is made that this evidence differs from their earlier position which was that the purpose of these items could not be known (or was “anyone’s guess” as it is put in the respondents’ answers received by the court on 29 April 2014). Even if they were evidence of holding pens that supported the view that the top of the cliff was where the grazings met the croft. The point is made that they must have had the effect of preventing animal movement downhill or uphill and thus formed “a clear and impenetrable boundary in practice”.

[89] This fencing or dyking would have helped form or consolidate the view of successive factors that the boundary was at the cliff-top. Fraser v Spencer 2001 SLCR 116, which was being relied upon by Mr Findlay, was an example of an agreement between a Factor and shareholders for the enlargement of grazings being recognised by the court. It was odd that Mr Findlay was citing this case because, in that it dealt with a tacit agreement, it was more helpful to the applicants than to the respondents.

[90] Mr Findlay was also relying on Jardine v Murray [2011] CSIH 60 as showing the value of early map-based evidence. But there had been no 19th century map for 47 Dalhalvaig in that case and, similarly, there were no drawings specifically of 295 Clashnessie in the present case. The only evidence produced in this case was the Napier plan whose low credibility, for croft 295 at least, the applicants had argued at the hearing. All of this might open the door to hearsay and oral evidence in the spirit of MacDonald v McNab 2001 SLCR (1) 133 and Maclachlan v Bruce & Ors SLC/18/13. The citation of Newlands v Assynt Trust Ltd 2008 SLCR 276 was also gratifying as an example of the evidential relevance of the remains of turf or stone dykes. None of Mr Findlay’s authorities made reference to the “supremacy” of the Napier plan.

[91] The submissions then raise questions as to whom the Grazings Clerk represented in this case and on what points. What was his authority over the applicants? What was his authority to uplift a boundary fence, especially one erected in good faith? There was also the point that as at 21 August 2014, the date from which he derived his mandate, Mr MacKenzie had not actually been in office as Grazings Clerk. It was not clear whether his evidence represented the views of other committee members. Dr Slator’s affidavit was clear in its support of the Napier line but acknowledged that his understanding of events in 2011 had been derived from informal interaction with the Clerk and Chairman. No minutes had been kept of the annual general meetings of the committee. It was bizarre that committee members King, Montgomery and Slator appeared to espouse the cause of traditional rights “so militantly” – down to the last blade of grass – notwithstanding that they themselves did not run stock on this area of the common grazings.

[92] It was not clear what significance Mr Findlay, in his commentary on Fraser v Spencer, was attributing to the fact that Assynt Estate had not entered the process. That was not to be seen as tacit support for the respondents’ case. Still less was it to be seen as a handover by the Estate of its authority to the Grazings Clerk. The court might want to ponder the validity of the respondents’ locus in the case.

[93] It was not necessary for the applicants to engage sec 53A of the Crofters (Scotland) Act 1993 because the line of their fence was justified by “the physical evidence of historical precedent”, reinforced by the evidence as to the intervention of the Estate Factor in 1955 which “upheld the estate’s thinking back in the 19th Century and effectively overruled ‘Napier’ in the name of common sense and years of practice to the contrary”. The Napier plan did not offer a set of reliable indicators as to where the eastern boundary of 295 lies. Reference is made to “an alternative croft” having to be staked out where necessary. This appears to relate to areas in which the evidence on the ground is not sufficient to allow the line of the boundary to be drawn. If the court found such gaps it might have to resort to sec 53A.

[94] Another source of relevant evidence was the decision-making power of Estate Factors. Major Farran in 1955 had not been dealing with a dispute between two crofts, both subject to tenancy rights, but with a single croft bounding the common grazings. Rights in common grazings were a very special kind of tenancy, a kind shared with others. When originally bestowed they could be adjusted by, in this case, the Duke of Sutherland, without contradiction. Reference was made to 1932 SLC RN 1988, production 34, showing the transfer by the Estate of part of the common grazings to croft 298.

[95] Further comment is then made about the non-appearance of the Estate in this case but it is unnecessary to repeat it because we consider it to be of no relevance to the issue before us. In other words we take no inferences, one way or the other, from their non-appearance. We likewise disregard comments as to the management of the Estate in recent years. We accept, however, that the applicants wished to engage the Estate with a view to resolving matters. But ACTL were entitled not to intervene and no significance of any kind falls to be attached to their decision not to do so.

[96] Comment is also made on the drying up of community knowledge of the past and the void which that has created. That may explain, it is said, the respondents’ “unheralded and heavy” reliance on Napier in their Note of Argument. However, imitative legitimacy should not be afforded to the Napier map on the basis of the GPS survey. Claire Gill, who had carried out the survey as part of a series of visits to Assynt townships for the purpose of updating SGRPID records and not as an exercise specifically commissioned for Clashnessie, had admitted that, at least where the cliff was vertical, her reading of the boundary as lying at the foot of the cliff could as well be read as at the top of the cliff. The “roughly sketched” Napier boundary, with five straight segments, could not be given pinpoint accuracy on the ground on the basis of this exercise. The “almost charismatic” authority of the Napier plan had to be challenged. If Mr Findlay was exalting its claims with as little argument as had been advanced in support of it the applicants too could adopt “an imaginative approach, in a legal environment which typically restricts courts to seeking precedents, rather than welcoming opportunities for creative action and the blazing of new trails”. The applicants were inviting the court to apply “a combination of realism and concern” which might be “less than conventional”.

[97] The applicants’ submissions close by arguing that it was the arrival of Ms Gill on the scene in July 2013 that caused the grazings committee to change its perception of the boundary from the dyke, uphill, to the Napier position as determined on the ground by Ms Gill. That change had happened five years later than claimed at the hearing.

(ii) Respondents

[98] Mr Findlay’s submissions open with a reiteration of the respondents’ position as being that the Napier map, production 3 and 23, correctly represented the legal boundary between the common grazings and croft 295. Comment is made on the work of the Napier Commission and it is said that the 1887 map of Clashnessie was drawn up on the basis of a survey following the publication of its report in 1884. It is said that many such plans were drawn up in the Highlands between 1886 and 1892. It is said that the provenance of the plan is not in dispute between the parties. The so-called “blueprint” of the plan had been held by ACTL but, according to Mr MacKenzie, it had gone missing. However a full, original size copy had been lodged by the respondents at the hearing.

[99] The significance of the eastern boundary of 295 being shown as a broken line, rather than a continuous one, was that it did not follow any physical feature on the ground. Many of the boundaries shown on the plan (the larger version shows the whole of Clashnessie) were represented by broken lines. This demonstrated that many, but not all, of the Clashnessie boundaries had been unenclosed in 1887. The absence of a physical boundary did not mean that the actual boundary could not be located accurately on the ground, only that it was unmarked on the ground.

[100] The significance of the 1887 map was that, in contrast to the undated copy OS survey maps, productions 25 and 26, and the map used in the 1888 application to the court, production 27, it showed not just the physical features on the ground but the extent and boundaries of the holdings and whether or not they were enclosed. Where the topography or geological features on the ground made it difficult to fence the 1887 plan boundary at any point, the applicants must enclose their croft within both (i) the croft extent and (ii) the ownership extent (believed by the respondents’ to be the same), not outwith either.

[101] The applicants were using the 1887 map when it suited them and discarding it when it did not. In production 42, a letter from them to the grazings committee dated 3 August 2013, they referred to a “total modern gain” of 0.58 ha as having been enclosed from the common grazings by their boundary. That had been calculated by reference to the 1887 map. That map, it was submitted, formed the agreed basis amongst the Estate, crofters and shareholders as to the extent of the occupation of holdings at Clashnessie. In the same letter the applicants had offered to exclude the pan-handle from the croft but it was not for the applicants or the grazings committee to re-draw the croft’s legal boundaries.

[102] Production 21, the 1892 map, showed some evidence of dykes within the common grazings. Mr MacKenzie had given evidence that these dykes tended to be at right-angles to the eastern boundary of the croft. He had given evidence that they may have formed some sort of pre-1886 enclosure the purpose of which was now difficult to ascertain. His evidence and what the court had seen on inspection should be preferred to the applicants’ position, which made a false connection between the ancient dyking, the cliff-top and the eastern boundary of the croft.

[103] The applicants’ title deeds also confirmed the importance of the 1887 plan. It was understood that the plan attached to the disposition by ACTL in favour of the applicants (production 37) had been drawn up by Mr John MacRae, the OS mapper who had given evidence at the hearing. From his evidence it appeared that Mr MacRae was familiar with the 1887 plan. The terms of the disposition gave no evidence that only part of the croft was being conveyed. Part IV, para (1) of the schedule to the disposition provided that the disponees were to erect a stock-proof “hedge, wall or stob and wire fence enclosing the disponed property but erected totally within the disponed property” (Mr Findlay’s emphasis). The Land Certificate title plan accurately replicated the deed plan. In the respondents’ submission, the inside of the red line shown there represented both the boundary between land owned by the applicants and land owned by the respondents (we assume Mr Findlay meant ACTL), as a matter of property law, and the eastern boundary of the croft, as a matter of crofting law. The broken line along the eastern boundary of the title plan indicated, in the same way as the broken line on the 1887 plan, the absence of physical features on the OS map used by the Keeper of the Land Register. The contrast could be seen with the solid black line used to represent the dyke at the south-eastern extremity of the croft.

[104] At the hearing the applicants had accepted that the fence they had erected from A to B on production 2 and intended to erect between B and C followed the eastern boundary of the area shown cross-hatched in black and red on production 28. The whole of that area, in the respondents’ submission, was part of the common grazings. That being so, the crofter respondents had been compelled to enter appearance in the present case to protect their own interests and those of future generations. It was strongly disputed that there had been silence from the grazings committee when the A-B fence was erected in 2011. Both Mr Kerr and Mr MacKenzie had given evidence of continuous opposition to the erection of the fence.

[105] The respondents’ position was that the applicants had no interest whatsoever in any land lying to the east of that shown in their registered title. They neither owned nor tenanted any land beyond their title boundary.

[106] Mr Kershaw had given evidence as to where he thought the boundary should be. He had relied on hearsay evidence of what Alistair MacLeod and Iain MacKenzie had thought the boundary to be. Neither of these gentlemen had been called as a witness and in that situation the reliability of the evidence as to what they thought must be very weak. The applicants had had the benefit of legal advice when they bought the croft and had lived on the croft for five or six years before buying it. Mr Kershaw had indicated in evidence that he would have seen a copy of the title plan prior to purchase. It was signed by Alistair MacLeod, which was more tangible and reliable evidence of his acceptance of the boundary per the deed plan than any comments he may have made to the applicants. The deed plan had also been signed by Allan MacRae, as a director of ACTL, on whose alleged belief as to the whereabouts of the boundary the applicants were also relying. Thus both of the people on whom they were relying to support their submission as to where the boundary should be had signed the deed plan prepared by John MacRae on the basis of the 1887 plan. Mr Kershaw’s own evidence in both examination-in-chief and cross-examination had been, in Mr Findlay’s submission, weak, unreliable, incredible and contradicted by documentary evidence.

[107] Mr Findlay’s submission then goes on to talk about the action the applicants should take if unhappy with their title boundary and about Mr Kershaw’s evidence as to how an intended assignation of a grazing share in his favour had not materialised but these submissions are not relevant for our purpose.

[108] Productions 34, 35 and 36 were all consistent as to the area of the croft from 1932 to date. These are, respectively, the 1932 Land Court cases RN 1988 and 2034 and the 1972 case RN 4222. In production 34, RN 1988, it was the equivalent of 5.3191 ha and there was a remarkable consistency between that area and the total area stated on the docquet on the plan attached to production 37, the disposition in favour of the applicants, viz., 53,357 square metres (5.3357 ha). When account was taken of the decrofted area, in terms of said docquet, the net area was 5.049 ha and that in turn was consistent with the extent set out in the applicants’ Land Certificate, production 22, which was 4.94 ha, a difference of 0.1 ha. There was therefore consistency, to within 0.1 ha, between the 1887 map and the modern Land Certificate. That was evidence that the 1887 map was the result of an accurate survey which correctly set out the extent of 295 Clashnessie. Its accuracy was confirmed by the modern mapping carried out by Registers of Scotland.

[109] The respondents’ submissions go on to refer to the stock management problems caused by the fence erected by the applicants, a full account of which has already been given. Its significance, we suppose, is to make the point, as the respondents see it, that the boundary proposed by the applicants is not a practical boundary from the point of view of stock management.

[110] Returning to the 1887 map, it was the best contemporary evidence of occupation of holdings and the extent thereof in Clashnessie at the time of the Crofters Holdings (Scotland) Act 1886. Reference is made to the note of argument previously lodged and the cases referred to therein. The 1887 map showed a clear boundary which had been confirmed by more recent OS mapping. The applicants had failed to show that prior to erecting their fence in 2011 any line east of the boundary shown in the 1887 map had been accepted by anyone as the eastern extent of croft 295. The evidence of what the Factor was alleged to have said in the mid-1950s was hearsay evidence from a third party to whom it had been hearsay when he heard it. In any event an Estate Factor had no authority to determine the boundaries of croft land and common grazings.

[111] In conclusion, the evidence was sufficient to enable the court to make a determination under sec 53(1)(c) of the 1993 Act and it was therefore unnecessary and inappropriate to resort to sec 53A.

[112] That concludes the respondents’ submissions but we should also record that in his Note of Argument Mr Findlay referred us to the following cases: Fraser v Spencer, Jardine v Murray, MacDonald v McNab, MacLachlan v Bruce & Ors, Newlands v Assynt Trust Limited, all supra, and South Uist Estates Limited v MacKenzie and Others SLC /113/09 and Stornoway Trust v MacLeod 2009 SLCR 164.

Discussion and decision

[113] One thing that is crystal clear from the evidence in this case is that the applicants had no legal right to erect the fence on the hill-top, from A to B on production 2. That is because they are neither owners nor tenants of the land on which it stands and have no other legal right to do so. That neither of them has been tenant of croft 295 is not in dispute and Mr Kershaw accepted in evidence that their Land Certificate does not include the piece of ground hatched in black and red on production 28, the eastern edge of which is where the fence and its intended continuation run.

[114] We begin by making this point because it is the foundation of Mr Findlay’s motion, made in the course of the hearing, to restrict this application in such a way as to regard it as an application for a determination as to whether the eastern boundary of the Land Certificate plan represents the boundary of the croft. The motion was made on the view that, being neither owners nor tenants of the disputed area, the applicants had no title or interest to seek a determination that the croft boundary was anywhere beyond the eastern boundary of what they own. Although the point is not specifically taken in Mr Findlay’s written submissions we should nevertheless deal with it.

[115] Section 53(1) of the 1993 Act provides that:-

“Without prejudice to any jurisdiction exercisable by it under any enactment, the Land Court shall have power to determine, either on the application of any person having an interest or on a reference made to it by the Commission, any question of fact or law arising under this Act including, without prejudice to the said generality –

(c) any question as to the boundaries of a croft or of any pasture or grazing land a right in which forms part of a croft;”

[116] When the applicants were buying 295 Clashnessie they thought they were buying the whole croft. At that time there was no issue concerning where, exactly, on the ground, the eastern (or any other) boundary ran and there was no need to check. The applicants believed, on the basis of what they had been told by Alistair MacLeod, that it was somewhere up the hill but no need had arisen at that time to ascertain exactly where. They believed that what was conveyed to them was the whole croft but that the eastern boundary of what had been conveyed was further up the hill than has turned out to be the case. They now know differently but continue to believe that the boundary of the croft, as opposed to what they purchased, is indeed further up the hill, more particularly at the top of it and approximately, if not exactly, along the A-B-C line on production 2. Were we to find in their favour, the consequence would be that Alistair MacLeod would be tenant of the area shown hatched in black on production 28 and we presume the applicants’ intention would be to approach him and ACTL with a view to buying this ground also. Accordingly we consider that they do indeed have an “interest” in terms of sec 53(1). That being the case, we have not restricted the scope of the application as we were invited to do by Mr Findlay.

[117] That point having been disposed of, we turn to the substance of the case. It is appropriate to start with an examination of the provenance and status of the “Napier map” since it featured so prominently in the evidence.

[118] Although it was consistently given the tag “Napier” in the evidence, it is by no means clear that the blueprint or map, part of which is shown in productions 3 and 23, has anything to do with the Royal Commission of Inquiry into the Condition of Crofters and Cottars in the Highlands and Islands which reported in 1884.

[119] The origin of production 3 is what was called a “blueprint” held in the Assynt Estate Office. The original of that blueprint is missing but Mr Findlay obtained a copy from the Estate Office and we have perused it. It bears the legend “Township of Clashnessie Parish of Assynt 1887.” This does not appear to be a later addition and the parties are agreed that it does in fact date from then.

[120] The Napier Report was followed by the Report of the Royal Commission (Highlands and Islands, 1892). It published its report, accompanied by a volume of maps of the Highlands and Islands, in 1895. The individual maps had been printed at various dates between 1858 and 1887. We have examined this volume and this map does not appear in it. The only map of Clashnessie contained in that volume, which the court drew to the attention of parties, is copied at production 21. Accordingly the blueprint does not seem to have been prepared for any purpose associated with the 1892 Commission.

[121] The provenance of the map is, therefore, not certain, nor its purpose, but, for convenience, in what follows we continue to refer to the “Napier map” and “Napier line”.

[122] As a production dating back to a time so close to the origins of crofting as a legal regime, this production deserves considerable weight. It is evidence of where the cartographer understood the boundary to be. There is no basis for thinking that it was arrived at carelessly. On the contrary, one assumes that since the trouble was gone to of producing it in the first place, care would have been taken to get things right. It must have been produced for a purpose, whether it has official status in relation to a Royal Commission or not. The fact that it was held in the Assynt Estate office suggests that it was used by the Estate as a map showing, among other things, the croft boundaries in Clashnessie. Although no witnesses from the ACTL were led, nor from the time before the community buy-out of the Estate, it is reasonable to infer that it represents the Estate’s historic documentary record of where the croft boundaries are.

[123] The applicants argue that the map is, nevertheless, not to be taken as showing the true eastern boundary of croft 295. That is because it does not correspond to any feature on the ground nor to the contours of the land and therefore seems arbitrary, eccentric, even irrational. Against that, it is pointed out that many boundaries in Clashnessie were not enclosed at that time and that there was not always a correlation between boundaries and physical features identifying them on the ground.

[124] It is known, of course, that in the absence of physical features man-made markers, such as cairns or posts were sometimes used to indicate boundaries. In the present case the applicants submit that the metal posts along the top of the cliff served exactly that purpose. The respondents have a different explanation. Both are plausible but each has its difficulties as a theory. If the posts were boundary markers why are there not more of them in evidence (given the permanence of metal posts) indicating a continuous line? On the other hand, if the boundary is below the cliff, why have holding pens for stock at the top? Given these doubts, it has not been possible for us to decide what the posts signify, but their existence is certainly consistent with the applicants’ position.

[125] The applicants argue that their position, concerning the posts, is consistent with what Alistair MacLeod had told them Major Farran had said to his great-uncle Cathel in 1955, when Cathel had been challenged by Mr MacKenzie’s uncle after starting to “fence the hill”, as it is put in Mr MacLeod’s letter to the applicants, production 15. Although this was hearsay even when Alistair MacLeod heard it, we have no reason to doubt that some such exchange took place. But it does not take us very far. We do not know whether Major Farran came out to inspect the line of the proposed fence or whether those who had challenged Cathel Kerr accepted his verdict. Certainly the fence never seems to have been completed, else there would have been evidence of it; if not physical evidence at this distance in time, then memory of it on the part of Alistair MacLeod himself. But there is none.

[126] The applicants’ submissions talk of Major Farran over-ruling the Napier line “in the name of common sense and years of practice to the contrary”. But there is no actual evidence, as opposed to supposition on the part of the applicants, of years of practice to the contrary and, in any event, if Napier represented the true boundary, it was not within Major Farran’s powers to change it unilaterally. A landowner could add land to a croft but not at the expense of land over which others had grazings rights without the consent of these graziers. Mr Kershaw is, of course, correct when he says Estate Factors had great authority and influence and that in many cases they would arbitrate in a dispute as to boundaries or impose their own views as to where a boundary was or should be. We have no doubt that all sorts of arrangements were made by Factors, with varying degrees of formality, that many such arrangements were acquiesced in by tenants, with varying degrees of contentment, and that the result was that boundaries were changed for all practical purposes. But, leaving aside any question of personal bar, such arrangements do not change the legal position if it is subsequently shown that the Factor was wrong. So, even accepting, as we do, that in 1955 Major Farran expressed a view that the boundary ran along the top of the cliff, that is not conclusive of the matter. It supports the applicants’ case, certainly, but it is only an adminicle of evidence which has to be weighed on their side in the balance.

[127] The evidence to do with Major Farran which we have just been discussing might have acquired greater weight had Alistair MacLeod given evidence, but he did not. Mr Kershaw said he was not aware that he could have asked the court to order Mr MacLeod’s attendance as a witness but it surprises us that he did not think to clarify that with the court. Maybe he was reluctant to attempt to compel the attendance of a reluctant witness who was also a friend but, whatever the reason, the fact is that the court has not had the evidence of the person arguably best placed to speak to the boundaries of the croft, given his family’s long association with it. His position is to some extent vouched by his foresaid letter but because he did not give evidence it has not been possible to cross-examine him about it. The result is that we cannot give his belief as to the whereabouts of the boundary as much weight as it might otherwise have had.

[128] Mr Kershaw also gave evidence that Allan MacRae and Iain MacKenzie had believed the boundary to be the top of the hill. Mr MacRae, who would without doubt have been a very authoritative witness given his long and close involvement with Assynt Estate, is, sadly, no longer with us and Mr MacKenzie was not cited as a witness. Mr MacRae’s subscription of the plan annexed to the disposition in favour of the applicants is evidence that he believed it to represent accurately the extent and boundaries of the croft, albeit he might not have realised exactly where, on the ground, the eastern boundary ran. It is certainly evidence that he regarded the Napier map as authoritative because the docquet on the disposition plan refers to it. We think Mr Findlay was correct to say that this is more reliable evidence as to Mr MacRae’s view than hearsay of what he said to Mr Kershaw.

[129] With reference to the GPS survey, Mr Kershaw said that Claire Gill had told him that the Napier line could as well be the top of the cliff as the bottom. However, she qualified this by saying “at least where the cliff is vertical”. Mr MacKenzie’s evidence was that she had told him the bottom of the cliff was “where she kept on finding” the boundary. It seems fair, therefore, to interpret the evidence in relation to her by saying she found the boundary to be at the foot of the cliff but that, where the cliff was vertical, it could be the top. But on no view of what Claire Gill’s survey produced could it be said to favour the applicant: Mr Kershaw accepted that production 28 accurately represented the “gain” to the croft which would result in taking the applicants’ fencing line as the boundary.

[130] Finally, in our consideration of the applicants’ case, we return to the submission that the Napier line was arbitrary, illogical and impractical. The point being made is that these considerations make it unlikely that this ever was the true boundary. The evidence does not lead us to agree with Mr Kershaw, except to the extent that there is not always any correlation between the boundary and any feature on, or of, the ground. It seems clear that there was no dyke or fence – no physical barrier – separating the common grazings from croft 295 in 1887. Against that background it can be said that lines on a map are arbitrary. But there had, nevertheless, to be an understanding of where the croft stopped and the common grazings began. If there was nothing to show it on the ground it had to be shown on a map. There is – standing our view of the markers on the top of the cliff – nothing to show it on the ground here but it is shown on the Napier map. Whatever the force of Mr Kershaw’s criticisms of the Napier line as a probable boundary line, having seen the lie of the land ourselves, we are not driven to the conclusion that it cannot possibly represent what was truly regarded as the boundary in 1887. There is nothing about it which leads us to that conclusion.

[131] In this connection, it has to be realised that any impracticality with the boundary would, of course, only come to light once it was sought to enclose it. So Mr Kershaw is probably right in saying that where, precisely, the boundary ran would not have mattered very much in the late 19th century when there was no immediate intention to enclose it. But it was important for a boundary to be fixed nevertheless and if it is accepted that the Napier line represents the boundary as it was understood at that time then that is an end of the matter and any practical problems which arise, now that the boundary is being enclosed, have to be worked around. From that point of view the evidence was divided as to whether fencing along the A-B-C line was easier than along the Napier line. It would have been interesting to hear what Mr MacPhail, the mutually-respected fencer, had to say about the matter directly from his own mouth but it is within the judicial knowledge of this court that boundaries frequently prove impossible to fence strictly along their line. In such situations what happens is that the best line is worked out, ideally with the co-operation of the neighbouring proprietor. That co-operation cannot be insisted upon, however, and where it is not forthcoming one has to fence within the confines of one’s own property, as near to the boundary as is practical.

[132] We turn now to the respondents’ case. It is based on the Napier map. Where it places the eastern boundary is certainly not where they thought it to be. At one time they thought that the north-south dyke was the boundary and then that the boundary may be the western edge of the Bordans road. The Napier map proved them wrong on both counts. It showed the boundary to be much further east. The respondents now admit they were wrong and say the Napier line, as fixed on the ground by the GPS survey, is correct. Mr Kershaw invites us to take an adverse inference from this change of mind on the part of the respondents but there is no basis for doing so. That is because, although the Napier line came as a surprise to Mr MacKenzie and Mr Kerr when they thought the better of uprooting the applicants’ roadside fence and went to the Estate Office to check the position instead, they have accepted its authority. It is true that Mr MacKenzie was, at an earlier stage, dismissive of it, as narrated above, but both he and Mr Kerr never felt able to act in defiance of it: no further attempt was made to remove the roadside fence. There is nothing strange, far less reprehensible, about changing one’s position in the face of what seems like convincing evidence.

[133] What Mr MacKenzie and Mr Kerr previously believed suggests that local knowledge did not put the boundary as far east as they now accept it to be; that there was no reliance on (or even knowledge of) the Napier line in the township. But that does not assist the applicants who assert that the boundary is further east still.

[134] The other evidence on the respondents’ side of the balance is the consistency of the area of the croft as shown on the Napier map, in the 1932 and 1972 Land Court processes and the applicants’ Land Certificate. Mr Kershaw readily accepted that there is such consistency. What that strongly suggests is that the applicants have indeed bought the whole croft and that there is no land belonging to the croft beyond the eastern boundary of the Land Certificate plan. John MacRae identified the plan included in production 29 as one he had prepared for Alistair MacLeod. It bears the typewritten docquet “This area banded in green comprises 5.049 ha. This is derived from the 13.185 acres shown on the post-Napier crofts survey (53.357 sq m), less (a) the southern decrofted site (1,254 sq m) and the northern decrofted site (1,607.5 sq m) which are hatched red”. This was the plan subsequently attached to the disposition by ACTL in favour of the applicants, production 37, and the basis of the Land Certificate plan prepared by the Keeper of the Registers dated 22 October 2014, production 22, in relation to a subsequent transaction. As we understand it the Keeper’s staff would have made their own calculations of the area involved, based on the title plan. The disposition in favour of the applicants having been granted by ACTL and the plan attached to it (signed by the said Allan MacRae and by Kirsty MacLeod, their Administrator) having been based on the Napier map shows that both the Estate and John MacRae, acting on behalf of the applicants, regarded that map as authoritative. The fact that the boundary it shows, when identified on the ground, turned out not to be where the applicants expected it to be does not detract from that authority.

[135] Finally, before leaving consideration of the respondents’ case, we should record that it has not been necessary for us to consider the cases cited by Mr Findlay. Mr Findlay himself made nothing of them in his final submissions. Mr Kershaw submitted that at least some of them supported his case rather than Mr Findlay’s. But the cases were cited merely as examples of the approach the court takes in cases such as this. Obviously no two boundary disputes are the same. Few of them raise points of law. This one does not do so and nothing we have done in this case departs from our approach in the cases referred to. Accordingly we need not consider them further.

[136] In the face of the evidence against him, Mr Kershaw was realistic enough to realise that what he was asking the court to do was less than conventional. He described the applicants’ approach as “daring and innovative”. He invites us to be “imaginative” and “creative” in our consideration of the case. However, with all due respect to Mr Kershaw, that is not an approach that is open to us. Our task is much more mundane: it is to decide the case on the basis of the evidence.

[137] That task is very much a balancing exercise. In carrying it out, we have accorded the Napier map high authority, for the reasons given. It bears to show where the eastern boundary of the croft was understood to be in 1887, only a year after the start of crofting as a statutory regime. That regime introduced security of tenure so it was important for crofters and landlords alike to know the physical extent of their crofts. Boundaries had to be fixed where those had been uncertain before. The Napier map purports to show such a boundary. The evidence shows that it has been relied on as the boundary by the Estate and crofters in the Land Court processes of 1932 and 1972, in as much as the extents given for the croft in these processes accord with it, and, more clearly, by ACTL, Alistair MacLeod and, ultimately, the applicants themselves when they bought the croft in 2008.

[138] The question then becomes whether the applicants have shown enough to prove, on a balance of probabilities, that it was not in fact the boundary. We have rehearsed the evidence on which they rely for that purpose. We have dealt with each aspect of it in turn. In our view it comes nowhere near outweighing the significance of the so-called “Napier map” taken with all that has followed thereonand we have therefore decided that the eastern boundary of croft 295 Clashnessie, separating it from the Clashnessie Common Grazings, is the black dotted line shown on the plan attached to the Land Certificate in favour of the applicants, a copy of which is annexed and subscribed as relative to our order. This is derived from the Napier map and seems to us to be the most accurate representation of the boundary.

The actions of parties and the status of the grazings committee during the dispute

[139] We heard evidence about things said and done by various people, mostly the respondents, in the course of the events which have led to the present case. We have not commented on them except to the foregoing extent because they are not relevant to the only question before us: the whereabouts of the eastern boundary of the croft.

[140] For the same reasons we do not go into any question of the status of the grazings committee and the validity of any mandate claimed by Mr MacKenzie for acting on its behalf at various stages. It was obviously wrong of people to act as if they were in office if in fact they were not. But it has no bearing on what we have had to decide.

Expenses

Following our usual practice we have allowed 21 days for written motions and submissions on expenses.