DIVISIONAL COURT

(D J Houston and J A Smith)

MACNAB v CASTLE LEOD MAINTENANCE FUND TRUSTEES

(Application SLC 133/12 – Order of 25 August 2014)

CROFT – BOUNDARIES – FOCUS ON DISPUTE – LANDLORD’S RETURN – REGISTER OF CROFTS – GUIDE TO EXTENT OF CROFT – PREVIOUS USE OF LAND – INLAND REVENUE SURVEY – BASIS OF OCCUPANCY – DECROFTING OR RESUMPTION NECESSARY FOR REDUCTION IN AREA – VALUE OF HEARSAY EVIDENCE – BALANCE OF PROBABILITIES – SECTION 53A NOT INVOKED

A crofter sought determination of the boundaries of her croft. She had accepted the assignation of the tenancy in 2004 on the basis that the croft comprised an area of land which came to be known as the “agreed area”. That had also been, in effect, the whole extent of the croft as let to the previous tenant in 1993. Just prior to that letting, the Register of Crofts had been amended at the request of the then landlord, resulting in a reduction in the area of the croft as noted on the Register. The applicant sought to establish that such reduction had been ultra vires and that her croft comprised not only the agreed area but also an area of ground contiguous with it – the “disputed area”.

There was a dearth of estate and other records relating to the history of the croft between the passing of the Crofters (Scotland) Act 1886 and the middle of the 20th century. The earliest formal record under the crofting legislation was an entry in the Register of Crofts which had been compiled in terms of the Crofters (Scotland) Act 1955 from information provided in the landlord’s return.

The applicant placed much reliance on the acreage recorded in the Register prior to the amendment in 1993. At the hearing, neither side was able to ascertain the source or otherwise explain the basis of the figure. Nor were they able to identify on the ground or on an Ordnance Survey map any practical combination of land parcels, or parts of them, which closely matched the figure or could be said to reliably reflect what was in the mind of the landlord or his agent at the earlier time.

The disputed land had been used by two successive tenants (father and son) of the croft in the period between around 1950 and 1993. The real question was the basis of that use or occupancy. The applicant’s position was that the disputed area had been removed from the croft without the due process of either crofting or resumption being followed. The landlord’s position was that the croft had only ever consisted of the agreed area.

On the basis of the evidence the Court concluded that the use of the disputed area by the previous tenants had been on a grace and favour basis and that the reduction in the area of the croft recorded in the Register was reflective of the agreement by the then landlord and tenant as to the extent of the croft. None of the disputed area, which was clearly delineated on a modern map, was or ever had been part of the croft.

The Court noted the terms of section 53A of the 1993 Act, but concluded that the evidence to support a clear determination was sufficient in this case and it was unnecessary to invoke the section.

The Note appended to the Court’s order is as follows:

Introduction

[1] In this application Mrs Sandra Isobel Macnab seeks a determination of the boundaries of the croft known as Blairninich (otherwise Old Inn) Croft, Fodderty, Ross-shire of which she is the crofting tenant. The owners of all the relevant land are the Castle Leod Maintenance Fund Trustees. It is clear that the only relevant dispute between parties in the application relates to the status of a particular area of ground and whether all or any part of that area forms part of the croft. The extent of the remainder of the croft is otherwise agreed.

[2] We heard parties on 16 and 17 April 2014 at Dingwall Sheriff Court and thereafter in Dingwall Council Chambers on 16 June 2014.

[3] Both parties were represented by solicitors – the applicant by Kenneth MacLeod, assisted by James Stewart, of MacLeods WS and the respondents by Jonathan Nisbet of Brodies LLP. It may be noted that certain other respondents lodged answers, but did not enter appearance.

[4] The function of any court is to resolve disputed matters and accordingly, whilst determination of the boundaries of the entire croft was sought, we are satisfied that resolution of the dispute between parties can properly be achieved if we determine the status of what we will term “the disputed area”. It comprises a number of identifiable elements and, as will be seen, we have dealt with each separately to such extent as it has proved necessary to do so. At this stage, it is sufficient to say that the disputed area extends to some 2.3 hectares (5.7 acres) or thereby and is clearly portrayed by reference to the plan, Production 34, on which it is delineated and cross-hatched in red.

[5] Parties are agreed that, whether or not any of the disputed area is found to be part of the croft, the area delineated in black or red and shaded in light blue on said plan – which we refer to as “the agreed area” – is part of the holding. It may be noted that the south west and south east corners of the south-most enclosure of the agreed area are not depicted on Production 34, but for present purposes, it is sufficient to say that the agreement of parties is that the whole of that enclosure (which can essentially be described as the hill ground) forms a part of the croft.

[6] Although reference is made to the various parts of the agreed area in evidence, submission and our discussion, for reasons which will become apparent, we do not consider it necessary or appropriate to make any formal determination as respects its precise extent or boundaries.

Parties’ Approach

[7] It was not disputed that in around 1955/56, the landlord, or someone acting on his behalf, completed and lodged with the (then) Crofters Commission what is commonly referred to as a “landlord’s return”. On the basis of that document, the extent of the croft was entered in the Register of Crofts as 36.5 acres of arable land and 45.5 acres of outrun – a total of 82 acres or 33.18 hectares. A significant element of parties’ approach, at least initially, was focussed on attempts to locate a ‘footprint’ on the ground (and so on Ordnance Survey maps) which matched the measured extent of the croft as it had been declared to the Commission at that time. To some extent, the exercise appears to have been founded on a misplaced assumption that the area registered with the Crofters Commission was in some way unchallengeable.

[8] At this stage, it is sufficient to say that neither side was able to produce what might be described as a perfect match. It meant that no light could be shed on the source, provenance or fundamental basis of the entry in the Register at that time. Thereafter, it seemed to be conceded – we think wisely – that the exercise was not going to greatly assist the Court in reaching its decision. Accordingly, we have only narrated limited detail of the evidence and submission in respect of it.

[9] At proof, it became clear – and indeed a matter of agreement – that the two tenants of the croft in the period from around about the early 1950s until 1993 had made use, not only of the majority of the agreed area, but also of the various elements comprised in the disputed area. The real question then became one as to what had been the basis of the occupancy and use of those elements. In light of the broad agreement about the actual physical use made of the disputed area, we have considered it unnecessary to narrate in any detail the evidence anent it, except insofar as it could be seen to be relevant in regard to the basis of the use. That is the aspect upon which parties were fundamentally disagreed. As it turns out, it is crucial to the outcome in this case.

[10] In about 1993, the then landlord and tenant of the croft agreed as to its extent. The footprint or demise of the relevant area on the ground was clearly shown on a plan which was based on an Ordnance Survey map. The relevant land parcels (fields) and their measured extents were listed on a schedule. The earlier entry in the Register of Crofts was subsequently amended to reflect that agreement such that the recorded extent became 15.43 hectares (38.13 acres) of arable and 15.41 hectares (38.08 acres) of outrun – a total of 30.84 hectares (76.21 acres).

[11] Parties were agreed that removal of land from a croft – either by way of division (then known as sub-division) or by taking it outwith the control of the crofting legislation (by decrofting or resumption) required engagement with either the Commission or this Court in a statutory procedure. Simple agreement of parties was not sufficient.

[12] The applicant’s position is that the amendment to the Register of Crofts came about as a result of an attempt by the landlord of the time to have land removed from the croft without going through the necessary formal process which that involved. She maintained that the croft in 1955 had comprised both the agreed area (including two house sites which have subsequently been formally decrofted) and all of the disputed area. The respondents’ position was that, notwithstanding the use which had been made of it by the crofters up until 1993, none of the disputed area had ever been part of the croft.

[13] Ultimately the focus of proof at the hearing was under two heads. Firstly, on the history of use of parts of the agreed area and of the disputed area in the early part of the 20th century; and secondly on whether the agreed use of the disputed area between the early 1950s and 1993 by the then tenants of the croft was founded on their crofting tenancy or otherwise.

[14] We heard evidence over 2½ days. A relatively small proportion of it has proved to be crucial to the outcome. Much of it is not disputed. Accordingly, by way of departure from our normal presentation of decisions of the Divisional Court, we have considered it unnecessary to narrate the whole evidence of each witness. Some detail of the evidence was, in any event, contained and reasonably accurately recounted within the respondents’ written submission.

[15] We start with a summary of the relevant parts of the evidence followed by a synopsis of each party’s closing submissions. In the discussion and analysis which follows that, we focus on the early history of both the agreed and disputed areas and on the evidence underlying the agreement reached by the landlord and tenant in 1993.

Evidence

[16] The applicant, Sandra Isobel Macnab was a part-time school auxiliary, but also assisted on the croft – although her husband did most of the work.

[17] The lease of Blairninich croft had been purchased from Alasdair MacNab (no relation). The application for assignation of the croft to her had been signed on 28 October 2003, with formal approval on 28 May 2004. The form had indicated that there was no house or steading on the croft. That had been the basis upon which it had been advertised and that had been their understanding at that time of taking the tenancy. The intention was to decroft an area and build a new house on the croft. They had sold their house at that time and, because the livestock needed to be tended, they had lived in a caravan until their house on the croft had been built some two years later.

[18] Subsequent to moving to the croft, they had heard something of the previous use of the croft and that the steading, the field above it and the woodland below it had been used by a previous occupier. There had also been an occasion when someone from the estate had advised her that the estate required some materials from the steading building in connection with work on the castle. He had been somewhat rude to her which she had found upsetting. Subsequently, a letter from Brodies had been received which threatened interdict if the Macnabs were found to be interfering with or taking anything to do with the building or the area of land around it.

[19] It was decided to apply to the Crofters Commission under the Freedom of Information Act for access to the croft file with a view to obtaining the full picture. A file of letters and other papers had been received and they appeared to indicate discrepancies in the area of the croft.

[20] Mrs Macnab explained that the croft tenancy had been taken in her name because at the time of its acquisition her husband had been employed by the Commission. She accepted that although letters were written in her name, they had been drafted by her husband because he had much more expert knowledge than her.

[21] The challenge to the boundaries had only been made several years after taking on the croft. She accepted that the plan which had been enclosed with her letter to Bowlts of 21 September 2004 (Production 58) showed what they had understood to be the extent of the croft at the time of the assignation. However, since moving to the croft they had been told by a number of people, including Jim Piper, Kenneth Stewart and Hamish Polson that previous occupiers had used the stone building and land which lay to the east of the croft access road. The Macnabs had also originally thought the woodland was not part of the croft, but they could see old fences and a fank there. That indicated previous use for stock. It had been on the basis of that and on the information from other people that a decision had been made to challenge the boundaries.

[22] The applicant’s husband, Archibald Macnab had been a civil servant for 34 years but was now retired. He had worked with the Department of Agriculture, but had also had two spells working with the Crofters Commission – the first in the 1980s for five or six years and thereafter in 1997 until his retiral.

[23] He was from a crofting background and had always wanted to get back to crofting. They had heard about the croft in Strathpeffer in 2003 and negotiated the purchase of the tenancy from Alasdair MacNab to whom they were not related. The tenancy had been assigned at the May term in 2004 and they had moved onto the croft and lived in a caravan in June or July of that year. The intention was to build a house, but that had taken around two years to come to fruition.

[24] He accepted that the majority of correspondence about the croft in recent times had been drafted by him and signed by his wife, Sandra. He had done all the groundwork, but she was the crofter and he did the farming work. The present application had been driven by him.

[25] Mr Macnab confirmed that their understanding of the boundaries of the croft at the time they applied to decroft a site for their dwelling-house had been as Bowlts had explained to them when they took on the tenancy. It was what had been agreed with Rod Macleod; it was also what Alasdair MacNab had understood them to be; and it was what he had assigned to Mrs Macnab.

[26] Although they had not used of any of the land outwith the boundaries of the croft as they had originally understood them to be, there was hardly a week passed without someone enquiring about the byre or steading building and the land surrounding it. They kept an eye on it, but always advised people to get in touch with the estate if they had an interest. Some people had assumed that it was part of the croft.

[27] There were remnants of an old fank in the woodland to the south of the building and that had led them to believe that it too might be part of the croft. They had been concerned when hearing that the lady living in the house which Alasdair MacNab had built had been offered a lease of the woodland.

[28] Mr Macnab understood that Rod Macleod’s father, known as “Jock the Glen”, had originally taken the tenancy of the croft. When he had died, the tenancy passed to his wife and then, subsequently, Rod himself became tenant. Rod was known as “Rod the Glen”. When his health deteriorated, the croft was advertised and the tenancy was assigned to Alasdair MacNab. When it had become clear that the issue of the boundaries was going to be dealt with in the Land Court, the Macnabs had written to Crofters Commission asking for copies of the croft files.

[29] Mr Macnab was referred to a number of copy documents which had been obtained from the Commission and in relation to a number of them he simply acknowledged the content without relevant comment. Accordingly we only note here the documents upon which he expressed a view.

[30] Production 25 looked like part of a “landlord’s return”. Production 38 showed the acreage of the croft to be 36 acres, 2 roods of arable and 45 acres, 2 roods of outrun. That was a total of 82 acres, but Bowlts had given them a plan, together with a list of field numbers, the area of which had totalled 76 acres. They had been surprised at the discrepancy.

[31] Production 37 was a copy of a “card record” held by the Commission for the croft. It showed all the grants which had been paid over the years. There was an entry showing an application for grant in respect of an “improvement number 2” made on 12 July 1988. This was for an improvement on the croft and would only be paid to an eligible occupier – not, for instance, to the estate. The card showed that Rod Macleod had been paid a grant for repairs to the byre roof under the Crofting Counties Agricultural Grants (Scotland) Scheme (“CCAGS”). There was no sign of Rod Macleod’s name on the card. Under-cross examination, Mr Macnab admitted that he could not be certain that Rod Macleod had applied for or been paid grant, but the application had related to Blairninich Croft and he had been the tenant at the time. If the grant was paid to Mr Macleod, it proved that he must have been the crofter.

[32] The annotation “Item 2:- Provision or improvement to a roofed silo (Roof of old steading)” had been added by the witness. There were other documents, but these had not been produced. Production 12 was a letter from the Rural Payments and Inspections Directorate to the estate dated 24 November 2011 indicating that the only record they had of grant being paid to Mr Macleod related to reseeding in 1988. Mr Macnab was insistent, however, that improvement number 2 related to buildings. Hamish Polson had told him that Rod Macleod had received grant for works on the roof. There would have been separate cards for building works and for reseeding works. Reseeding works would have been listed as improvement number 10.

[33] Production 42 was an extract from the Inland Revenue survey of 1908 – 1910. It and other related documents had been obtained from the Public Records Office. His understanding was that at the time every field and farm had been surveyed for land tax. A plan was prepared for each area, together with books setting out what the fields were used for. A team of people had done a full inspection.

[34] Production 40 was a copy of the map associated with the relevant field books for the area which included the croft. He did not know whether the map had been revised from the original Ordnance Survey map or whether it had in some way been specially prepared for the survey.

[35] Production 42 was another extract from the field book. It covered the plot 41 shown on the map, and included the lower part of the Blairninich Croft as it had then been. The relevant entry referred to the occupancy of a house, steading and croft. The occupier was stated to be Murdo Cameron. That plot did include the house and steading, but not the field to the north of it.

[36] Production 41 was the extract relating to that field and the occupier was shown as John Kay. The extent was shown as “2.0.11.0”. There was a further entry “2.073”, which meant 2.073 acres.

[37] Production 43 was the extract for the house to the east of the field. The occupier of that was also stated to be John Kay. Mr Macnab accepted that, at the time of the survey, the field which he was now claiming was not occupied by the same person who was then occupying the area of the croft which included the steading.

[38] Production 44 was the entry in the field record book for the woodland to the south and east of the steading. Although the record showed it to be woodland owned and occupied by the Countess of Cromartie, Mr Macnab thought that it had subsequently been occupied by Mr Macleod and become part of his croft.

[39] It was not possible to relate the area shown on Production 40 to that recorded by the Crofters Commission on Production 38, which was what had been registered in 1955. Production 59 was a letter from the estate factor, Mr Dunn, to the Crofters Commission dated 19 October 1992. The estate was seeking to ensure that there was no confusion over boundaries at the time of the assignation from Roderick Macleod. The estate wished to ensure that field parcel 0028 was not recorded as part of the croft. That field was on the left hand side as one entered through the gate from the public road and it lay in front of the old steading building. There was now no sign of any division between the field and the land surrounding the old building. It would have been to the advantage of the estate to ensure that it was not recorded as part of the croft.

[40] He confirmed that the parcels below the railway line – 568, 576, 575 and 569 – were all included in the land which they claimed to be part of the croft – as shown on Production 34. They could all be identified on the more modern map, Production 55 and so there was no indication of any change since 1906. However, he accepted that the eastern-most parcel (568) appeared to be in different occupancy according to the Inland Revenue map.

[41] He had found no evidence of any formal application to have the area of the croft reduced. The only decrofting approvals related to the two relatively recently constructed houses. He had only come across one resumption application which had been for the access to the house at the main road. The application concerned was RN 309 – and a copy of it was Production 71.

[42] The estate had stated in the 1985 resumption that the croft extended to 33.18. This was more in line with what had been registered in 1955 than what the estate was saying today. The resumption process had taken place before Alasdair MacNab had decrofted his house and before their own house was decrofted. At the time of taking the tenancy, Bowlts had given the Macnabs a plan together with a list of field numbers which added up to 30.84 hectares. That was a lot less than 33.18 hectares. Their own plan at Production 6 showed where they thought the missing hectares lay.

[43] Production 32 included a copy of the Valuation Roll for the County of Ross and Cromarty for the Year 1954-55 in respect of the Parish of Fodderty. Entry number 63 showed “Land and house” at Blairninich with the proprietor recorded as “Lord Tarbat’s Inter Vivos Trust” and the “Tenant or Occupier” as John Macleod with at Yearly Rent or Value of £23-14-6d. When the Macnabs had taken the tenancy, they were told there was no house. The Inland Revenue Survey in 1910 or 1911 had said there was a house and land. There had been a single house at that time, but it had been divided by the estate and then part occupied by the Macleods and part by others. There was no suggestion anywhere that the house had been decrofted or resumed.

[44] Everyone had told them that the dark purple area shown on Production 6 had been used by Rod Macleod. He had grazed it in the past and the handling facilities had been there. One would expect to have handling facilities on a croft. There was no doubt that the steading building had been built for agricultural purposes. There had been a traditional cow byre with four stalls, a barn or store in the middle for fodder and then a stable with places for four horses at the other end. It was built with stone and lime. The roof had all been slated at one time, but it was partly corrugated asbestos now and it was in need of attention. This sort of building was typical of what could be seen across the Western Isles. A croft would be expected to have such facilities.

[45] Production 34 was a plan produced by the Crofting Commission, but it had been compiled on instruction from Mr Macnab – he had been sitting next to a colleague who was preparing it. Mr Macnab had told him where the boundaries were. The area shown in light blue extended to 31.17 hectares, but Mr Macnab believed that the croft was about 81 to 82 acres or 33.18 hectares. Adding the disputed area which was hatched in red and extended to 2.3 hectares took the total up to 33.47 hectares. That was more than what had originally been recorded by the Crofters Commission. The Macnabs had decrofted 0.2 hectares and Alisdair MacNab had decrofted 0.28 hectares for their respective houses. Mr Macnab was unable to identify any area which might be excluded to bring the figure back to what was originally recorded in the Register of Crofts.

[46] He thought the croft had been registered in 1955 as a single croft along with the building. To the proposition that it would appear that the croft had been enlarged between 1912-1915 and 1955, Mr Macnab suggested that two crofts had possibly been amalgamated. In 1955, Mr Macleod had been the tenant of a single unit. In Mr Macnab’s view, the Inland Revenue parcels 40 (the field), 41 (the house, steading and croft) and 546 (the wooded area) together with some of the hill had come to be occupied by Mr Macleod as one croft.

[47] There did not appear to be any proper boundary on the Inland Revenue map for the hill area to the south of the railway line. It was not apparently designated as part of the croft then so there was no equivalent boundary. The hill was steep and it appeared to have been open to the east at that time. Mr Macnab suggested that it had been an unfenced part of the croft, but had subsequently been enclosed. He did not know whether the fence now on the eastern boundary of the hill was in existence when the croft was registered in 1955, but he assumed that the estate would have measured the land prior to registration and that it would have been the area actually let to Mr Macleod. He accepted that occupation was not necessarily the same thing as tenancy, but the house and steading had been described as part of the croft. He had been told by Roseann Christie that the whole area was used by Rod the Glen.

[48] Mr Macnab had no surveying qualifications and was not an expert on matters of topography, but he had formal training in agriculture and had some knowledge of plans. He had experience in using a planimeter, a chain and poles and had been trained how to measure areas on the ground and on a map. It was possible that the various measurements taken from the map could be out “by an acre or so”. The declared area of the croft could be slightly out which meant perhaps up to an acre, but even a difference of 1.84 acres would not necessarily be too far out.

[49] Taken to Production 29, a copy of an Ordnance Survey map of 1959, which bore resemblance to the 1906 one, there was still no sign of a fence on the hill. That, however, did not mean that there wasn’t one there by 1959. Just because the hill was very steep did not mean that any measurement would be inaccurate. It would have been possible for the estate to have measured it accurately. He had not referred to the Inland Revenue survey just because what was shown on Productions 40 and 42 suited his purpose. It was only part of the evidence.

[50] It was clear that Rod Macleod had occupied and used the areas which the Macnabs were now claiming. He had kept stock on the ground. Mr Macnab accepted that when he had added up the various acreages, he could not get the total to match exactly what had been registered. He also accepted that Mr Macleod’s father might have occupied some of the land even though it was not actually part of the croft.

[51] Productions 74 and 75 were, respectively a plan and schedule prepared by Mr Forster. Production 21 was a modern annotated map also prepared by Mr Forster. Several propositions were put to Mr Macnab in regard to the various calculations which Mr Forster had carried out. He was unable to point to any specific flaws in Mr Forster’s methodology. In light of the subsequent acceptance by both sides that it was not possible to match with any degree of precision the area registered in 1955/56 with a measured area on the ground as depicted on Ordnance Survey maps, we have not narrated the detail of this tranche of Mr Macnab’s examination.

[52] To the proposition that the hill was rough grazing and would therefore have been classed as outrun, Mr Macnab was of the view that the description of land could change over time and that it was the total acreage which mattered. The fields at the south of the railway line were not apt to be classed as arable – they did not look like arable land on the ground. Arable fields were normally ones which could be ploughed. Compared to the fields to the north of the railway and the south of the river, they were much less like arable land, but he accepted that they might be have been worked by horse. The land had nevertheless been classified by someone when the figures were prepared and registered in 1955.

[53] It was accepted that the Crofters Commission could not guarantee its records. There was a warning on them to the effect that the data was gathered from a number of sources such as estate records. Survey methods could not be guaranteed. Nevertheless Mr Macnab thought that the 1955 record, having come from the estate in the first place was a good starting point. The estate had said the croft was 83 acres in 1955 and yet today they were being told it was only 76 acres.

[54] To the proposition that the area of the croft as now proposed by the respondents was only 3 acres short, Mr Macnab conceded that the croft could have consisted of only that land and that what he was claiming as part of the croft was never in fact any part of it. However they had been told by the Pipers, the Christies and Miles McMaster that the land they were now claiming was part of the croft.

[55] Kenneth Stewart had known Rod Macleod well – he had been in the same class at school. He also knew about Rod’s father and about his position as head shepherd for the estate. Rod had kept sheep on the disputed land and used the steading building at lambing time. There had been an estate pony on the croft. He thought it had been used on the hill ground of the estate and had been brought down to Blairninich by the Macleods when they had moved there. The fencing had been poor so stock could wander from the steading into the woodland. Hay had been stored in the steading building and the horse was kept at one end.

[56] The late Lord Cromartie had been a generous, benevolent and very fair man. Mr Stewart was unsure as to the basis of Rod Macleod’s use of the disputed area.

[57] Ian MacDonald was younger than Rod (“the Glen”) Macleod, but they had been friends. He thought that Rod had kept some 50-60 sheep and 2 or 3 cows on the croft. In those days, there had been no road into the croft – only a gate at the side of the road. He recalled that Rod had bought hay from Alastair MacGregor and the witness had delivered it on a trailer to the croft from about 1977 and for “a good few” years thereafter. The hay was stored in the steading building and used for the cows in the byre. There had been no fences between the track and the steading – such that, after coming through the gate, one could then drive straight to the building.

[58] Rod had also lambed the sheep at the steading. A new roof had been put on it, but the witness could not recall exactly when that had been done. He surmised that it would have been sometime between 1977 and 1987. There had been a fank in the wood, perhaps fifty metres to the south of the building. It had been used for clipping the sheep, but they were taken across to a farm on the other side of the road for dipping. The sheep had also had the run of the field to the north of the steading. Mr MacDonald had never discussed the croft boundaries with Rod.

[59] Roseann Christie gave evidence that her grandfather had built the house known as “Moorlands” in 1929. It was next door to the two cottages of Old Inn. Jock (“the Glen”) Macleod had been living in Old Inn East when her family had moved to Blairninich in 1959. He was Rod’s father and he had been using the croft at that time. She recalled that Mrs Macleod had milked cows in the byre at the steading. The building had been split into two and she remembered seeing the cows, sheep and a horse there. She recalled sheep pens in the woodland.

[60] She knew Iain MacKenzie, the architect, who had lived at Moor Cottage. His family had lots of ducks and a horse, but no other animals. She could not recall the horse grazing in the field to the north of the steading, but thought there had been a fence running from west to east just across from the steading.

[61] The houses to the west of Moorlands had been built in the last twenty years, but they replaced previous houses. The one immediately to the west of Moorlands was demolished and rebuilt in 1990. The next one to the west had been built in the 1950s. She knew nothing about boundaries or whether the steading was part of any tenancy.

[62] John Hay had been a self-employed joiner-contractor and he recalled that, in the latter part of the 1970s, probably between 1976 and 1978, he had stripped off an old roof on an estate building and fitted new lintols. The building in question was stone-built, small and single storey and the roofing work had been on the left end of it when viewed from the road. He did not remember the layout being as shown on Production 55, the 1967/71 Ordnance Survey map. The sarking and rafters had all been in a rotten state, so he had removed them, put in new rafters and purlins and fitted new corrugated sheeting. The instruction had originally been to sheet the building with something else, but he had used ‘Onduline’.

[63] His instructions had come from Hamish Polson, the architect, but he had liaised with the estate office and he thought that it had been the estate which had paid him. There had been no contact or dealings with either the Department of Agriculture or the Crofters Commission or with Rod Macleod. He was confident that the work had not been carried out as late as 1988.

[64] Craig Fosterhad been a chartered surveyor with Bowlts for eleven years and his first involvement with Blairninich Croft had been in 2004 when he had acted for the estate in connection with assignation of the croft. He had also met with Archie Macnab in connection with the decrofting of the house site and had subsequently become involved when the dispute over boundaries had arisen in 2012. At that time Mr Macnab had not provided him with any evidence as to why the boundaries were as the Macnabs now claimed them to be.

[65] At that time, he had been asked by the estate to investigate the matter and had looked at the archived files of the estate. He had looked at old valuation rolls and also at some earlier plans. He had also met with Ian MacKenzie who had been a previous occupier of Moor Cottage. Mr MacKenzie had told him that the field to the west of Moor Cottage had “come with the house” and that there had been a gate from the house into the field.

[66] The witness had carried out some surveying investigations using the Ordnance Survey maps. In light of our earlier comments, we refrain from setting out the detail of his analysis of the maps. They were clearly set out on the plan and schedule – respectively Productions 74 and 75. His objective had been to attempt to find a measured area on the ground which coincided with the area which had been recorded in the Register of Crofts in 1955. It was clear from the early Ordnance Survey maps that in the late 19th century and early 20th century, the hill land to the south of the three parcels at the south of the mill lade had not been fenced on the east side. That had presented difficulty in identifying the croft boundary there.

[67] A solid line on the map would represent a fence line. On the 1906 map, Production 54, it was clear that the steading building did not lie within the paddock to the north of it. It could be noted that by 1992 (Production 31) the fences generally to the south of the Old Inn houses had all but disappeared.

[68] The witness had obtained Production 25 (the “landlord’s return”) from the Crofters Commission. The entry relative to the croft, although not particularly clear, showed the tenant as John Macleod, with 36 acres 2 roods arable and 45 acres 2 roods of outrun. Mr Forster had been attempting to identify a list of parcels of land whose total acreage matched that acreage – namely 36.5 acres arable and 45.5 acres outrun. He had overlain earlier Ordnance Survey plans onto a modern digital plan. Production 21 was the result of that exercise and was an attempt to pick up and allocate the areas of the various parcels.

[69] In summary, he had been unable to find an exact fit for the arable land, despite the relative ease with which the various parcels of land could be identified. There had also been difficulties with the outrun. The problem stemmed from a lack of information as to when the fence at the east of the hill had first been erected and why it’s current location had been chosen. He noted that it was some 300 metres long and that by simply moving it some 40 metres further to the east, a further 3 acres would be added to the extent of the enclosure.

[70] Mr Forster could not offer any explanation as to the differences in acreage between what had been entered in the Register of Crofts and that set out in Mr Macleod’s advertisement for the assignation of the croft, Production 13.

[71] The 1906 map could have been inaccurate, with boundaries out by perhaps two or three metres – as could be the case now. However modern maps were based on aerial techniques and he thought that they were more accurate. There could easily have been an error in the acreage calculations made in 1955/56. It was accepted that the steep land on the hill might have a different area when measured on the ground than when measured from the air, but he was not aware of any adjustments being made for the slope.

[72] Production 14 was a letter from Ken Bowlt to Rod Macleod’s solicitors dated 15 June 1993. The witness had discussed the contents of this letter with its author, who had told him that, by that time, Rod Macleod had been elderly and there had been talk of him retiring. Mr Bowlt had already assisted with the preparation of the IACS forms for the croft. Mr Forster accepted that the crofter would have been responsible for checking the plan before submission to the Department, but in this case Mr Bowlt had been asked to prepare it.

[73] In 1993, Mr Bowlt had probably only been in his second year of involvement with the estate. He had been uncertain of the boundaries and had been asked to clarify them. He had taken the opportunity to have the extent of the croft agreed with Mr Macleod. They had met and the outcome had been the map and schedule attached to the letter.

[74] As was indicated on that schedule, there was a discrepancy between the acreage which had been agreed and the figures held by the Crofters Commission. Mr Macleod’s agents had confirmed that the map and schedule were “acceptable to him” (Production 15). Mr Bowlt had advised Mr Forster that there was never any suggestion of the estate attempting to reduce the extent of the croft. The exercise had simply been carried out to identify the boundaries of the croft. In terms of Production 16, the Crofters Commission had been asked to amend their records as regards the extent of the croft.

[75] Sandra Macnab had written to Bowlts on 21 September 2004 (Production 58) seeking the estate’s agreement to her acquisition of a site for a proposed house. A plan had been enclosed. Mr Forster thought it may have been the same plan as, or one similar to, the one which had been sent to Bowlts by the Crofters Commission at the time of Mrs Macnab’s application for decrofting, but he was not certain. It could be noted that the plan did not include the steading, the Old Inn house or the woodland.

[76] In his letter of 12 May 2005 (Production 18) responding to the Crofters Commission’s consultation about the decrofting of the house site, Mr Forster had enclosed a plan showing the boundaries of the croft as then understood by the estate. It showed the area of the croft as extending to 30.85 hectares or 76.23 acres – which was essentially the same as that shown on the schedule which had been prepared in 1993. The plan which had been sent by the Crofters Commission had not shown the full extent of the croft, so he had sent the full plan for completeness. But there was no difference in the boundaries as between the two.

[77] Alexander James (Hamish) Polson was an architectural technician. He had been brought up on the Castle Leod estate, his father having been a gamekeeper there. Mr Polson had been very friendly with the late Earl of Cromartie. He had been a very generous man and treated his former workers well.

[78] Mr Polson had known old John (“Jock the Glen”) Macleod who had been head shepherd on the estate. There had been a large sheep flock and Jock had lived at Glenskiach. He thought that the sheep had been sold in around 1960, but it might have been earlier. He was also fairly certain that it had only been after the sale of the sheep that Mr and Mrs Macleod had moved down from the glen to live at Blairninich. Mr Macleod’s father-in-law, William Gray, had been grieve at Achterneed, the home farm. Although Mr Gray had lived in Old Inn East, Mr Polson was not sure if he had been the crofter there. At that time, the estate yard was just along the road from the croft and the top fields on the croft had been used for grazing by estate horses. There was an old iron gate into the field next to the road and it could still be seen today.

[79] Although Mr Polson thought that the field to the north of the steading had been associated with the house at Moor Cottage, the fences had latterly been in disrepair so Rod Macleod’s sheep may well have been on the field.

[80] In around 1973, there had been a proposal for a chalet development in the woodland. The witness had heard no suggestion that it might be part of the croft. He recalled that there had been a fence on the Milnain side of the woodland and on the west side, but no fence at the steading. The fencing had not been good and sheep could go through it.

[81] In about September 1978, the late Earl had asked him to renovate the steading at Blairninich. There had been no maintenance carried out on the slate roofs; the sarking was rotten and the slates had fallen off. Two thirds of the roof had fallen in. His recollection was that it had been the centre and east sections of the steading that had collapsed.

[82] He had drawn up plans for the renovation and had organised for John Hay to carry out the work. Mr Hay was an independent contractor who worked on his own and had carried out work on Mr Polson’s office. The job was a pretty simple one. New trusses and sheeting needed to be fitted. The old collapsed roof was cleared and replaced with Onduline sheeting to make it wind and water tight.

[83] There had been discussion as to the type of sheeting that might be used and a decision was made to use a new material called ‘Onduline’ which worked out cheaper, but still did a good job. The alternative would have been fibre / cement sheeting. Onduline was a slate-grey coloured composite sheet. He had been back to the building about five or six years ago and the Onduline sheeting was still in place. Prior to its renovation, Rod Macleod had told the him that the steading building belonged to the estate. Rod had not had any hand in the repairs, but he still used the steading afterwards.

[84] Mr Polson had also been involved in discussions about the renovation of Old Inn East cottage. The property had been in need of total renovation and the estate had consulted him about it. The witness had known Rod Macleod well. At around the time of the renovation, Mr Macleod had been thinking of giving up the tenancy of the croft. They had discussed Mr Polson taking over the croft if no-one else was interested. In the event, someone else took the tenancy, but Rod had assured Mr Polson that there were no buildings on the croft and that the boundaries were as shown coloured on Production 74, together with the hill.

[85] At the time he was thinking of taking over the croft, Mr Polson’s understanding was that the boundaries extended to the fence at the west of the wood and straight across to the boundary with Macdonald’s croft and running all the way down to the burn. The fence at the east between the wood and the croft had been dilapidated.

[86] Alex Dunnhad held various jobs, but the longest had been with the Castle Leod estate. He had started there as a labourer in about 1979 and had latterly been assistant factor until he left in 1994. His duties as assistant factor had included surveying of properties, pricing renovations, arranging sales of timber and maintenance of properties. He had dealt directly with the late Earl, also with Brodies and latterly with Bowlts. Discussions with the Earl had been almost on a daily basis. He was a “thorough gentleman” and had died in 1989 or 1990. Thereafter Mr Dunn had worked for his son.

[87] His first involvement with the croft had occurred not long after he had been appointed as assistant factor. In around 1984, the Pipers who lived in Old Inn West had complained about damp and smoke coming through the wall from the other half of the semi-detached property. He had gone to see Rod Macleod. This had been the first time that he had communicated with Mr Macleod since he had moved to Blairninich. Rod was not in good health and the house was in appalling condition – with everything wrong with it that could go wrong. The roof and floors were sagging and the windows and doors were rotten.

[88] Mr Dunn had contacted the planning department to enquire about grants. An inspector had visited the property and reported that the only way forward was to strip the house back to the walls and refurbish it. Rod had agreed to move out. He was a more clever person than might be thought upon first appearance, having been dux of the local primary school. It was clear that he was quite aware of the poor condition which the house was in. No maintenance had been carried out on it and, perhaps out of a sense of embarrassment, he had talked about the house and also the croft. He had told Mr Dunn that Old Inn East was a grace and favour house and that it had been rent free since the family had moved down from Glenskiach.

[89] He had also told him that the field to the east was known as the plague field and not part of the tenancy. It had been used by Mr Macleod as additional grazing for his sheep. No-one had told him not to use it and although at one time it had been properly fenced, the fences had decayed and not been repaired.

[90] Mr Macleod had also said that the wood and steading were not part of the croft – even though he had used them too. They had talked for perhaps half or three-quarters of an hour and Mr Dunn had been quite surprised at how forthcoming he had been. There had been no intention of any form of interview taking place and he considered it most unlikely that Mr Macleod would have told him about the extent of his tenancy if he had not believed it himself.

[91] The Land Court application for resumption (Production 71) had been completed in the witness’ handwriting. He could not recall the basis upon which he had entered the area of the croft at “33.18 hectares”, but it would almost certainly have come from some document in the estate office. There had been no estate plans. He had not undertaken any steps to measure the croft area or to verify it. It did not seem to him to be of relevance, but he must have found it somewhere. He now found it puzzling that he had assumed the area to be part of the croft since both the Earl and Rod had told him it wasn’t. However the croft had needed the access too, so he may have come to the conclusion that it needed to be decrofted.

[92] The only other dealings Mr Dunn had had in relation to Old Inn croft had been when Alasdair MacNab had obtained the tenancy from Rod Macleod. He had an informal meeting with Mr MacNab when they had walked round the boundaries – mainly to inspect the fences.

[93] Production 59 was a letter to the Crofters Commission of 19 October 1992. It had been typed by the Earl’s secretary and signed by Mr Dunn. Its main purpose had been to ensure that it was made clear that field 0028 was not part of the croft. There had been no mention of area in the letter and Mr Dunn did not accept the proposition that he was effectively telling the Commission about the area of the croft. If there was a discrepancy between the 33.18 hectares as entered on the resumption application and any another figure for the extent of the croft then it was simply due to his own incompetence. He had no idea why such a discrepancy existed.

[94] The record keeping in the estate office had been chaotic and he had tried to introduce a more efficient system – but by 1992 he was only working part-time. He did not know why the record-keeping was so poor, but there had been a fire at Nutwood, where the estate office had been at one time, in which a number of documents had been destroyed. Documents had also been stored in an old damp kitchen and had turned mouldy. Wherever the 33.18 hectares had come from, it had not been verified by him. If it had been incorrect originally, then he was simply replicating the error.

[95] Mr Dunn recalled that the fences on both sides of the woodland had been poor, with the west side next the main croft worse than on the Milnain side. Effectively stock had had a free run of the wood. The access to the croft was alongside the garden of the Old Inn East house. The land to the south of the houses and to the north of the steading was open. There had at one time been a fence, but it had long since fallen into disrepair. He also recalled the steading prior to its being repaired. The roof had fallen in at the middle and to one side and was then replaced with corrugated material.

[96] John Mackenzie, Earl of Cromartie gave evidence that he was manager of Cromartie Estates. He had been manager of the estate since his father’s death on 13 December 1989.

[97] He used to help his father from time to time when he had been working in the area and they did discuss estate matters. The witness had always known the croft which was the subject of today’s case as Blairninich. He had known Rod Macleod well and they had occasionally talked about the croft. Rod’s father, Jock, had been senior shepherd and Rod was under-shepherd. When Jock had retired, he had moved to Blairninich and taken over the croft.

[98] His father, the late Earl, had close connections with the area and used to speak of Jock Macleod in glowing terms. As head shepherd, he had stayed at Glenskiach but had moved out in the 1960s when the estate sheep had been disposed of and the ground sold for forestry. The late Earl was not the sort of person who would have been strict about ensuring tenants kept within their boundaries. If someone had utilised ground outwith their tenancy, then he would have been unlikely to have taken issue with it.

[99] Ken Bowlt was a chartered surveyor and his firm was still used by the estate for valuation and survey work. The witness’ knowledge of boundaries was pretty vague, but he accepted that he had probably instructed Mr Bowlt in accord with the terms of the letter, Production 14, with a view to having the entry in the Register of Crofts amended in accordance with what had been agreed with Rod Macleod.

Submissions

For applicant

[100] There was no dispute between the parties as to the location of the west boundary of the croft. Mrs Macnab had originally accepted the boundaries to be as they had been explained to her at the time of entry by Messrs Bowlts. It had only been after entry that she had been told by others that the croft had extended beyond that as originally understood by herself and her husband. They had only started their investigation into the boundaries after someone from the estate had sought to remove lintols from the steading building.

[101] It was clear that the land in dispute had been used for crofting purposes. Indeed it had been conceded that Jock Macleod and Rod Macleod had used the disputed land. Susan Christie had given evidence of use of the byre for milking cows – which was a badge of crofting activity. The steading had been used for crofting in the 1960s and 1970s and thus it was difficult to reconcile that with the evidence that it had been in a poor state of repair and that work required to be carried out at that time.

[102] The area as submitted to the Crofters Commission in 1955 was quite clear. It was the same acreage as Mr Dunn had used in the resumption application in 1985. In that application he had confirmed the area of the croft as being 33.18 hectares and that tied up with the data held by the Crofters Commission at the time. He had simply carried out a conversion from acres and roods to hectares.

[103] Thereafter, the estate had attempted to subtract an area from the croft. Production 14, the letter from Bowlts to the Crofters Commission in June 1993, was a clear attempt by the estate to change the extent of the croft from what had previously been recorded. It was saying that the area should be less – quite a lot less. The respondents had accepted that to reduce the area of the croft required either resumption through the Land Court or decrofting by the Crofters Commission. Those processes had been introduced to protect crofters from predatory landlords. It was for those bodies to ensure that crofts were only reduced in size for reasons which could be justified. In Crofters Commission v Mackay 1996 SLCR 72, it was emphasised that formal procedures needed to be gone through in order that such changes might be brought about.

[104] In reality this had been an attempt to get agreement of the crofter to a reduction in the area declared originally to the Commission. As such, it was a sleight of hand by the estate. The original area had been confirmed by Alex Dunn in the resumption application and ratified by the Land Court. Yet, on the basis of an agreement with the crofter, that area was amended at the landlord’s request by the Commission.

[105] The Inland Revenue maps and field books were prepared following specific inspection of the subjects – as had been explained by the Lord Gill in Jardine v Murray 2011 CSIH 60. His comments had been made in connection with an appeal from a decision of the Land Court in which the Inland Revenue material had been relied upon. It had been used as evidence and was held to be of considerable value because it had been based on a physical inspection of the ground at the time.

[106] There must have been a specific inspection by the Inland Revenue staff and as thorough a job would have been done in Strathpeffer as had been done in Sutherland. Any necessary corrections to boundary features as shown on the Ordnance Survey map would have been noted at that time. It followed therefore that the Inland Revenue map in this case was very germane to the Court’s determination of the status of all the relevant land between the road and the railway.

[107] The applicant accepted that the Inland Revenue material did not demonstrate a croft of anything like the extent which was now accepted by both parties today. However the Inland Revenue evidence in this case demonstrated that the badges of crofting were already in place in relation to the holding at that time. Crofts seldom changed in area. Nor did the location of their boundaries normally change. In the present case the boundary lines as shown on the Inland Revenue map could still be identified today. In Jardine at paragraph 26, Lord Gill had narrated that the Divisional Court had “thought it inconceivable that in drawing [the map] up, the Inland Revenue team had failed to consult with the estate”.

[108] Although the badges of crofting had therefore already been established several years earlier, it had been shown that Rod (“the Glen”) Macleod had actively crofted the ground. The oldest crofter in the village (Kenneth Stewart) had given evidence that the disputed land was run as part of the croft. Mrs Christie had watched Rod Macleod’s mother milking cows in the byre.

[109] Production 6 was a plan which had been prepared by Mr Macnab. The parties were agreed that the area shown in light purple and marked “31.82” thereon was part of the croft. But there was disagreement as to whether any of the area shown in dark purple and marked “2.31” was.

[110] The steading building had been used by the Macleods. It had been used up until the 1970s for milking. Rod Macleod had been using it after the roof had been refurbished. There was no dispute that he was in fact using it for crofting purposes and the applicant’s position was that it was part of the croft.

[111] The plague field was also used by him. Although there had been evidence of the field being used by a neighbour for grazing a horse, there was also evidence of Rod Macleod grazing it with sheep. Although the respondents did not consider that usage of the field was based on it being part of the croft, they produced no evidence of an alternative lease or alternative basis of use. It may have been that a horse was permitted to use the field along with the sheep. It was submitted that the plague field was also part of the croft.

[112] The woodland had been referred to as a shelter belt. It had been grazed by Mr Macleod and there had been a fank in it. It too had clearly been used by him for crofting purposes. So too had the area of the access track leading to the public road.

[113] The late Earl had died in 1989 and prior to his death no issue had been raised about the extent of the croft. Most of the evidence produced by the applicant as to usage of the disputed subjects related to activities before 1989.

[114] The respondent had questioned where the hill had come from. It was possible that there had been amalgamations following the loss of local crofters in the First World War. The applicant could not say why there had been no evidence of formal enlargement, but the return in 1955 must have been based on accurate measurement.

[115] The area recorded in the landlord’s return was very specific – down to 2 roods – which might imply that it had been accurately measured. That same figure had been repeated by Mr Dunn and that had been during the lifetime of the old Earl. Mr Dunn had been aware of the entry he was making on the resumption application form and the respondents were now barred from casting doubt on that. The applicant’s submission was that the figure established in 1955 was emphasised by virtue of the resumption application in 1985. That resumption application effectively contained a submission on behalf of the estate as to the area of the croft.

[116] The applicant recognised that land could be removed from a croft, but it could only be done through a formal process. The hill area could have been added by enlargement, but for removal of ground then there was a formal mechanism as had been emphasised in Crofters Commission v Mackay. The estate had been seeking to take land away from the croft and it could only do that by a formal process. No such process was carried out.

[117] The submission therefore was that the croft extended to include the two purple areas shown on Production 6 and extending respectively to 31.82 and 2.31 hectares – a total of 34.13 hectares. That area was as close as the applicant could get to the extent of the croft as originally recorded by the Crofters Commission and reinforced by the landlord in the resumption case.

For respondents

[118] Mr Nisbet had helpfully prepared a written note of submissions. After a short introductory section, they were set out under a series of headings and we have followed that pattern in our summary of them.

Introduction

[119] The burden of adducing sufficient evidence to support her case lay with the applicant. Mr MacLeod had seemed to suggest that there was some unchallengeable accuracy in the Crofters Commission’s original figure – yet the plan, Production 6, upon which his client relied showed an area of 34.13 hectares. It was therefore unclear what the basis of his client’s case was. If the area of the croft was 33.18 hectares, then the Court needed to know what parts were to be excluded in order to achieve the recorded acreage. The applicant’s position had not been clearly stated. There had been no submission and no evidence adduced which could be said to point to how the applicant had come to the view that the acreage of the croft should be 34.13 hectares as opposed to 33.18 hectares.

[120] The applicant had applied to the Court seeking an order declaring the boundaries of the Croft known as Old Inn Croft (sometimes Blairninich Croft), Fodderty, Strathpeffer. She contended that the extent of the holding encompassed an area, said to be 2.31 hectares in extent and represented by a dark purple shaded area on Production 6. This area was described as the disputed area and it was contended by the respondents that it did not now form, nor had it ever formed, part of the holding.

[121] There was insufficient evidence either to show that any of the dark purple area was ever a part of the croft or to support the view that the holding was of the extent as contended for by the applicant. Whether the croft extended to 33.18 hectares or to 34.13 hectares, there was not enough evidence to support the applicant’s position. In those circumstances, the Court should exercise its power in terms of section 53A of the Crofters (Scotland) Act 1993 and declare the boundaries of the holding to be the area outlined in red on Production 18, but in addition to that it was agreed that the field below the railway should be included.

Extent of the holding prior to 1955

[122] Prior to the enactment of the Crofters (Scotland) Act 1955, the relevant legislation governing the definition of the holding and its extent was the Small Landholders (Scotland) Act 1911. It was accepted by the respondents that the holding would have been subject to both the 1911 Act and prior to the coming into force of that Act, also the Crofters Holdings (Scotland) Act 1886. Accordingly, the extent of the holding as a croft in 1911 could not have been reduced unilaterally or by agreement between the parties without the authority of the Land Court. There was no evidence to support any reduction of the area of the holding prior to the coming in to force of the 1955 Act. Accordingly, the extent of the holding immediately prior to the coming into force of that Act was, subject to any later resumption or decrofting directions, the extent of the holding today.

[123] The evidence adduced relating to the period prior to 1955 amounted to a map which was believed to have been produced in around 1912 (Production 40) and various field reference book extracts (Productions 41-44). Those documents had been prepared by the Inland Revenue to show the state of land occupation in 1909. The map was based on the most up to dateOrdnance Survey mapat that time. It was important to note that the survey exercise carried out by the Inland Revenue in order to produce these documents was not intended to be a survey of land ownership or interests in land. Rather, it was simply about the state of occupation of land. However, from the Inland Revenue material, it could be deduced that the holding was subject to the 1911 Act and may have been subject to the 1886 Act.

[124] The Inland Revenue map (Production 40) showed land divided into numbered parcels. The parcel with reference number 41 included some of the land which it was now agreed formed part of the holding together with parts of the disputed area, namely the house and the steading and the area immediately surrounding the steading. The field reference book extract which related to parcel 41 on the map could be found at Production 42. The entry there described the parcel as relating to “House, Steading and Croft”three separate descriptions. It was not clear whether this represented a single interest in the subjects or not. It said no more than that they were all occupied at the time by the same person, but that was not definitive evidence that the whole parcel was a croft. The description in itself gave rise to the possibility that the house and steading were not part of the holding, that being limited to the area described as “Croft”. It was, however, unclear.

[125] The tenant was stated to be Murdo Cameron and it was not disputed that he occupied these subjects at the time. The extent of the area was stated to be 41.548 acres. That was a great deal smaller than 82 acres, which was the extent of the holding as recorded in the Register of the Crofters Commission in 1956. That in itself cast some doubt on the map and field reference books as providing evidence of the holding’s extent. The applicant had offered no evidence as to how and when the holding had come to be enlarged.

[126] Two of the other areas which formed part of the disputed area were recorded as being occupied by different persons. The first area, the woodland, was referenced on the map as parcel 546. The field reference book extract relative to that parcel (Production 44) recorded it as being occupied by the Countess of Cromartie. Accordingly it appears that it was occupied by the owner of the land and then head of the Cromartie Estate. If the plan and field reference book extracts were a record of the holding as the applicant appeared to contend, no explanation had been provided or evidence offered as to how and when that area had become part of the holding. The other area, the field to the north of the steading area, was recorded as being a croft with John Kay as occupier and Donald Fraser as tenant. Again, the applicant had offered no evidence or explanation as to how and when that had become part of the holding.

[127] Whilst those records may provide sufficient evidence of occupation of the various areas in 1909, their value as evidence of the extent of the holding at that time was, it was contended, limited. Whilst parcel 41 included land which was accepted as being part of the holding by the respondents, the area recorded then was dramatically smaller than that which was recorded in 1955. There had been no evidence offered by the applicant of any agreement to enlarge or application for enlargement of the holding which might have explained the discrepancy. This was a record of occupation and we had heard evidence from Mr Dunn, Mr Polson and Lord Cromartiethat the estate, in more recent times,had allowed persons to occupy the house, steading and woodland at various times but not within crofting tenure. The estate had not been unduly concerned about occupancy in excess of rights given – the landlord sought to help people.

[128] To such extent as the map and field reference book demonstrated anything, it was limited to showing that the same individual occupied part of what was accepted as the holding now, together with the house and steading. That did not amount to evidence that they were all part of the same interest in land. Where the map and extracts did have significance was in the demonstration of the fact that the woodland area was occupied by the landowner.

Register of Crofts – 1956

[129] From 1955 the holding qualified for croft status in terms of section 3 of the 1955 Act, it being a holding to which the 1911 Act applied at the time. The extract from the Register of Crofts in respect of the holding (Production 38) recorded the arable area of the holding as 36 acres and 2 roods with the outrun at 45 acres and 2 roods. This same information had been provided in the landlord’s return (Production 25). There was no evidence, however, to inform who completed the landlord’s return or what information that person used, or the process undergone at that time, if any, to arrive at the figures provided.

[130] Entry in the Register did not constitute the holding as a croft – Palmer’s Trustees v Crofters Commission 1990 SLT (Land Ct) 21. Neither did entering measurements in the Register of itself constitute a croft of that extent. There was evidence of significant weight to suggest that the entry in the Register for the holding in 1956 could not be relied upon as being the accurate and true extent of the holding at that time.

[131] Firstly the information in the Register had been provided by the landlord and, as was accepted by the Commission itself, was not guaranteed in terms of its accuracy due to the landlord perhaps having incomplete records or inaccurate measurements. Secondly, the measurements as expressed did not fit easily with the facts on the ground. Mr Forster had given evidence on that point and explained the detailed and extensive exercise which he had undertaken in the study of historical Ordnance Survey maps with a view to seeking to identify the 36.5 acres of arable and 45.5 acres of outrun reflected in the Register.

[132] He had advised the Court that his starting point was the historical map produced for the Inland Revenue survey (Production 40). This had been helpful, he said, as it had defined parcels of land with acreages. He noted that the parcels of land as mapped did not appear to change to any real extent up to (and perhaps beyond) 1955. Despite this, he was unable to identify a combination of parcels which would match either the arable figure of 36.5 acres or the outrun figure of 45.5 acres.

[133] He concluded that it was entirely possible that the figures may not be correct. Indeed, he gave evidence that the extent of the neighbouring Milnain croft also appeared to be overstated in the Register of Crofts, adding further weight to the conclusion that the information on the Register was by no means accurate. Much reliance had been placed by the applicant on accurate measurement of the croft having been undertaken prior to the submission of the landlord’s return. It also seemed to be suggested that the repetition of the same figure at a later date somehow supported that accuracy and that it was the best evidence in this case. That was not accepted by the respondents. Somebody may have gone through a process of identifying the boundaries to get to those figures, but it seemed clear from the evidence in this case that the method had not been via the Ordnance Survey maps.

[134] In addition to that doubt about the accuracy of the entries in the Register, the view of Rod Macleod, the former crofter, was that the croft’s extent (at least the arable element) was somewhat smaller than that which the Register’s figures would represent. In his advert for the holding (Production 13) he specified the arable extent of the holding as measuring 32.5 acres. He had advised Mr Polson that there were no buildings on the holding and he had advised Mr Dunn in the same terms. His solicitors, acting on his instruction, did not demur from that proposition on his behalf. Significant weight should be attached to the view of the former crofter in this regard, not least because it came from a number of different sources. He was crofter for many years and his father before him. In those circumstances he may be expected to know the extent of the croft which he was occupying. There was also evidence that he was not a person who would give things away.

[135] For the foregoing reasons it was submitted that the measurements which appeared in the Register for the holding could not be relied upon as a reliable record of the geographical extent of the holding.

Evidence of Use

[136] The applicant had led evidence about the use and occupation of the holding. Neither the applicant nor her husband could speak to events prior to their arriving in the area in around 2004. Mr Macnab, however, claimed to have been told by “many people” that the steading and other parts of the disputed area were part of the holding. The “many people” turned out to be only Mr Kenny Stewart and Mr Iain MacDonald, each of whom gave evidence in person and neither of whom was able to say more than that they had witnessed certain parts of the disputed area being used by the crofter from time to time.

[137] Mr Macnab had been adamant that Rod Macleod had applied for a grant to re-roof the steading building in 1988 and that this evidenced that the building must have been part of the holding. Only the crofter could apply for the form of grant applied for, he said. The context and other evidence, in particular the extract from the CCAGS register at Production 37, demonstrated that the grant in question had been made in 1988. Even when it was put to him that the relevant regulations plainly in force for CCAGS at the time of the application for the grant in 1988 demonstrated that the entry in the record for the holding related to re-seeding, he would not accept that he was wrong.

[138] Mr Macnab had refused to answer certain questions on account of his answers being challenged and, in effect, being undermined. He had been somewhat cavalier with the facts and demonstrated an unwillingness to accept factual information put to him which was clearly at odds with what he and the applicant had hitherto considered to be correct. He exaggerated the strength of evidence offered in support of the applicant’s position.

[139] He had relied heavily on the accuracy of the Register, but advanced an extent of the holding in his plan (Production 6) which exceeded the area recorded in the Register quite substantially. He could not offer any explanation for that and was quite upfront in the fact that he did not see the need to do so. He did eventually, however, concede that it was possible that the measurements in the Register may not be correct and that they may not correspond with the plans upon which he and the applicant had relied. He had not attempted to reconcile any plans with what was in the Register. In short, the Macnabs wanted a bigger area but had given no evidence in support of it.

[140] The applicant had offered a number of witnesses who were resident in the area and who knew past crofters at the holding. All of them had given evidence which was both credible and generally reliable. They had recounted use of the disputed land for grazing of livestock and use of the steading building for lambing sheep, milking cows, stabling for a horse and storing hay. There had been a sheep fank in the woodland.

[141] The evidence made it clear that the late Earl had been a well-respected and liked character in the area and that he looked after those who had worked for the estate. The house, Old Inn East, which Jock Macleod occupied (and Rod after him) was an estate house and the Earl had allowed Jock and his family to reside in it on his retirement from service with the estate. The neighbouring house had been occupied similarly.

[142] It was fully accepted by the respondents that use of the disputed areas by Rod Macleod had been demonstrated. However, the evidence offered by the applicant for the various areas to come within the holding on the basis of his use went no further than that. All it demonstrated was that the areas may have been used by the crofter from time to time, but also showed that the estate had used some of those areas and structures. However,when taken together with the other evidence heard about the estate’s view and the irreconcilable measurements and plans, it was insufficient, it was submitted, to meet the burden the applicant had of evidencing that those areas formed part of the holding.

[143] There was evidence that Iain MacKenzie had used the plague field adjacent to Moor Cottage for grazing a pony and that the field had been rented to him by the estate. It was clear that the steading building was estate property. Development of the plague field for housing, the woodland as a caravan park and the steading building for residential purposes had all been considered. Although none of these proposals had come to fruition, they indicated that the estate had long considered the disputed area to be unburdened by any crofting or other tenure. Mr Polson had been interested in taking over the holding from Rod Macleod and was expressly advised by him that there were no buildings on the holding.

[144] The evidence of Alex Dunn, the former estate worker and de facto factor was very relevant. He had a conversation with Rod Macleod in which, unprompted, Mr Macleod had stated that neither the steading, field, woodland nor the houseformed part of the holding. Significant weight should be attached to Mr Rod Macleod’s view. He had discussed the nature of his occupancy with several different individuals in unrelated circumstances and unprompted.

[145] The 1985 resumption application had been made as a belt and braces exercise and it was not the case that Mr Dunn had considered that the area which was resumed was in fact part of the croft. He had not been certain one way or the other.

[146] Neither Rod Macleod nor his solicitors had ever suggested that he had a right to remain in the house because it was part of the holding. Rather they accepted it was estate property and a rent could properly be demanded by the estate. The house had been separately let for many years and continued to be separately let today.

[147] Repairs carried out at the steading in or around 1978 were without doubt instructed by and paid for by the estate in terms of the evidence of Mr Hay. The estate had at one point – in the 1980s – considered developing the steading for the use of Lord Cromartie and his family. In so considering that proposal there was never any doubt that it could do so if it wished. The evidence of the respondents’ witnesses suggested very strongly that the roof of the steading had been in a very dilapidated state up to the point where works on it were completed by John Hay. That had been, according to Mr Hay and Mr Polson, in 1978.

[148] It had been Ken Bowlt who had drawn up the schedule and plan to show the extent of the croft. Mr Forster had discussed this with him. Mr Bowlt had advised him that he had been instructed by the estate to seek clarity on the boundaries with the crofter as he did not keep good health. He had attended at the property and had discussed this with Rod Macleod. Following that discussion he had drawn up a plan to show the boundary of the holding and this had been agreed to by Rod Macleod through his solicitors.

[149] There had never been any hint of the estate seeking to agree to alter the boundaries of the holding. The explanation of the circumstances which led to the correspondence with the Commission in respect of the clarification of the boundaries is entirely consistent with what Mr Macleod had told Mr Polson and Mr Dunn and with the messages conveyed about the extent of the holding through his solicitors. The reason for the correspondence had nothing to do with subtracting land from the croft, but had been done to clarify the extent of the holding and improve estate records at a time when the management of the estate had recently changed. There was a process for enlargement and it was much easier to enlarge the extent of a croft than to reduce it.

[150] In his professional capacity, Mr Forster had opined that he had attempted to aggregate the various parcels of land in the Ordnance Survey maps in order to reach the figures registered with the Crofters Commission. He had been unable to achieve those figures in any combination of the various parcels of land which he attempted. He was able to get within an acre or so of the arable figure, more or less, by including one or other part or parts of the disputed area, but he could not achieve the exact figure. As to outrun, again he could not achieve an exact figure. He did suggest that the lack of fencing on the southern hilly area, together with the nature of the terrain itself, may have made accurate assessment of the outrun area difficult. A fence had not appeared on the hill area in the Ordnance Survey plans until 1974.

[151] It was submitted that, on balance, it was likely that the fence, had it appeared at an earlier point and prior to 1955, would have been represented on the revised Ordnance Survey plans at an earlier point in time (Productions 28 or 29). The area to the south was steep and hilly and would not have been easy to measure. An inaccuracy could have come from that. Ordnance Survey maps also had an inherent margin of error of around 1 to 2 metres. It was certainly possible that the holding did not include any of the disputed area, but equally that it may do so. The maps and plans had not allowed him to make either conclusion definitively.

The House, Steading, Woodland and Field

[152] The evidence clearly supported the view that the house had never been a part of the croft. The linkage of the house to the holding stemmed from documents which were not in themselves recording the extent of the interest in land, rather they were recording occupancy.

[153] As to the field, we had heard evidence about its occupancy and use from a number of sources. It was accepted that it had been used by the Macleods, but the evidence demonstrated that Mr MacKenzie had used the field during his ownership of Moor Cottage. The estate’s long held view was that the field was estate land to be developed or sold at its discretion. This, taken together with the evidence in production 41 demonstrating that the field had been under separate occupation in 1909, offered support for the conclusion that the field had not been and was not now part of the holding.

[154] The steading building was certainly used by both John Macleod and his son Rod. However it was also used by the estate at the same time. The estate had instructed and paid for the repairs of the building and not long afterwards discussed turning it into accommodation for the present Earl and his then wife. The Earl was not the kind of man who would seek to arbitrarily resume land without authority. Quite the opposite, he was a man of some generosity who specifically looked out for and took care of persons who had been in his employ. The estate did not appear to have any strict policy in regard to boundaries.

[155] The woodland again may have been used by the crofters, but this was not itself irrefutable evidence that it formed part of the holding. Indeed, the woodland was in occupation of the estate in 1909 and again no evidence had been offered as to how or when it had become part of the holding. Little could be taken from the presence of a sheep fank as evidencing that the woodland was part of the holding. The evidence was that it was of some age and that there was every likelihood that it had existed in that location when the Inland Revenue survey had been carried out and at that time the woodland had been occupied by the estate. The estate had been contemplating developing it for commercial purposes. The proposed development had been as a result of the Earl’s initiative and unauthorised resumption was, as the evidence had shown, simply not consistent with his character.

[156] As far as the applicant’s submission in relation to the value of the Inland Revenue survey was concerned, it may be that Lord Gill’s comments about inspection were limited in their application to Jardine v Murray case. It was not clear that the data was always based on inspection by the Inland Revenue appointed recorders themselves. It so happened that, in Jardine, the Inland Revenue evidence was preferred. Significant weight had been attached to the Inland Revenue material by the applicant in the present case. But the value of the evidence in the Jardine case should be distinguished from its value in this one. In the Jardine case, there had been no other evidence of occupancy. The crofts appeared to have extended to a size much greater than recorded in the estate’s records – even prior to 1886. There was no other explanation of the occupancy other than it was unofficial. In the present case it was the opposite. It was likely to have been tolerated. In the earlier case, the estate records had been very good. In the present case, the estate records had been poor and the evidence was that the measurements given to the Crofters Commission were not correct – but it was not possible to say how inaccurate they were.

Conclusion

[157] Whilst it may be unusual for a croft not to come with a steading and house, it was not unique or unknown. The evidence demonstrated that at least one crofter of the holding resided elsewhere before Rod Macleod occupied the house. The map and plan evidence was inconclusive. The measurements in the Register did not accord with any of the plans either historic or more modern. The measurements were, it was submitted, simply incorrect. The error in them had never been tested and had been repeated without any need to enquire as to their accuracy since then. It was possible to exclude the disputed area in its entirely from the holding and achieve a reasonable fit to the measurements.

[158] The applicant had failed to adduce sufficient evidence of the requisite weight to establish that the holding was measured in the extent or bounded as she contended. The evidence which supported a conclusion by which the disputed area was outwith the boundaries of the holding had come from a number of independent sources and should, it was submitted, be preferred. To that end neither the field, steading, house nor woodland were ever part of the holding. Little or no evidence had been advanced to support the applicant’s case. No-one could now attest what the boundaries of the croft actually were.

[159] In those circumstances the Court had the power under section 53A of the Crofters (Scotland) Act 1993 to declare the boundaries to be those which it considered appropriate. Mr Nisbet moved the Court to exercise that power in order to declare that the boundaries of the holding were as outlined in red on the plan found at production 18 of process, with, in addition, the field to the south of the railway as had been agreed between parties.

[160] In considering the application of section 53A, the Court could look at recent or current circumstances – whereby neither the house, the field, the steading nor the woodland had been used by the crofter for many years.

Inspection

[161] We inspected the subjects briefly prior to the commencement of the first hearing, then carried out more thorough inspections of both the disputed and agreed areas on 17 April and 17 June. It is unnecessary to set out the detail of our inspection. Where any part of our decision has been influenced by our observations on site, then we have included relevant detail in the discussion which follows.

Discussion

Evidence

[162] Generally speaking we found all the witnesses to be credible. Their reliability was variable, but that was, we think, largely due to their evidence requiring recall of events from many years ago. In reaching our decision, that aspect has not been cause for concern. Mr Nisbet was critical of Mr Macnab as a witness. We agree that he had a tendency to be evasive when he felt an answer which he might give would not be supportive of his wife’s case or when his own analysis was challenged. A significant proportion of his evidence was not as to fact. Much of it, in our view, could be regarded as his personal opinion. We do not think he was at any stage being deliberately untruthful and, as will be seen, nothing in his evidence has been critical to the outcome in this case.

Agreed area

[163] Although it seems that there is no dispute as to the location of the boundaries of the agreed area, we did inspect it. We noted that there are several physical features on or close to the apparently agreed boundary at the west side of the hill. In parts, there are two different fences, a dyke and a ditch. There is also more than one physical feature at or close to the location of the agreed northern boundary at the public roadside. The same is true of some parts of the remainder of the north boundary and the east boundary.

[164] Whilst the applicant’s submissions refer to Production 6, her final position in terms of the area which is agreed to be part of the croft is founded on Production 34. The respondents’ final position on the agreed area (and indeed as to the full extent of the croft) is based on Production 18. The light blue shading on the plan, Production 34 is clear enough. So too are the red lines on Production 18.

[165] However, having regard to the absence of any relevant evidence; to the area braces on earlier Ordnance Survey maps; to the presence of multiple potential bounding features on the ground and on the maps; and to the lack of involvement of some neighbouring proprietors and occupiers, we are not prepared to make any definitive determination of the location of the boundaries of the whole croft. The only relevant disagreement between parties concerns the disputed area. It is sufficient for us to record in this Note that parties have agreed that, whatever the full extent of the croft today, the area shaded light blue on Production 34 and also delineated in red on Production 18 (with in addition parcel number 1180 on Production 55 and under exclusion of the Macnabs’ house site, shaded green) form part of it.

[166] It is clear that Mr and Mrs Macnab had originally accepted the boundaries to be as had been explained to them by Messrs Bowlts at the time of entry. We are satisfied that their understanding was entirely in accord with Productions 34 and 18 – except only that (i) the parcel number 1180 was not then apparently included; and (ii) the area now decrofted for their house was still croft land at that time.

[167] The only matter in dispute as between parties in this case therefore is as to whether any part of the area shown delineated and hatched in red on Production 34 forms part of the croft. We now consider the evidence which bears on the status of that disputed area.

Pre-1955 evidence : Inland Revenue Survey
Introduction

[168] Whilst there has been no proper evidence as to how the Inland Revenue survey was actually carried out, neither party has suggested that what was recorded at the time was somehow inaccurate. We accept that the material was founded on the most up to date Ordnance Survey map at the time. Of course we don’t know anything about the basis upon which detail of occupancy and other information was obtained. But we are entitled to assume that the survey was carried out with some degree of diligence and that care was taken in the compilation of the record such that the description of the subjects and of interests in the land can be taken to be broadly accurate. It can hardly be doubted that at least some of the land was inspected. The pages of the field reference books for each reference number had a pre-printed heading: “Particulars, description, and notes made on inspection”. The detailed descriptions of buildings and woodland, for instance, in the extracts lodged in this case strongly imply that inspection took place at the time.

[169] We accept Mr MacLeod’s submission that many (indeed most) of the field / enclosure boundaries and features identified at that time (on the 1906 map) could be seen or at least identified today. But we do not think references to the “badges of crofting” are of any assistance here. Whilst inferences can be drawn from the position of fence lines and the location of buildings and other features, it is normally unsafe to draw conclusions as to occupancy from a map alone.

[170] There was no clear evidence of the actual date when the Inland Revenue survey was carried out in this area, but we understand that the exercise itself was focussed on determining the value of land based on occupancy as at 30 April 1909. We are aware from other cases that the survey may not have completed until perhaps 1914 or 1915. Accordingly the data could have been collected either before or after the introduction of the Small Landholders (Scotland) Act 1911 (“the 1911 Act”). In any event, there is no doubt that the Crofters Holdings (Scotland) Act 1886 (“the 1886 Act”) was already in force. However, the actual date is not important for present purposes. We are content to proceed on the basis that some of the ground with which we are concerned in the present case was subject to crofting tenure by the time the survey was carried out. Parties are agreed about that.

[171] In Jardine v Murray 2011 CSIH 60 Lord Gill had opined that the Divisional Court had been justified in putting the weight it did on the Inland Revenue material and that it had been entitled to reach the view it had on the basis of all the evidence, including its own inspection of the ground. We agree with Mr Nisbet’s submission that he was endorsing the Divisional Court’s approach, not the value of the Inland Revenue material per se. Accordingly the reliance to be placed on the survey depends very much on the circumstances of the individual case and the other evidence available.

[172] An early problem for the applicant in the present case was that the Inland Revenue material did not show what we might term ‘a unit in individual occupation’ of anything approaching the extent of even the agreed area of the holding at Old Inn today. Not only that, it clearly had a part of the disputed area recorded as being held under a separate tenancy and another part in-hand to the estate. Further, the description of the remainder of the disputed area is recorded as “house, land and croft”. Of course we do not know if the Inland Revenue staff specifically sought detail as to what was or what was not occupied under crofting tenure (as opposed to other forms of agricultural tenure or even ‘unofficial’ occupancy). It does mean, however, that even the steading, access and surrounding area cannot positively be said to have been part of a croft holding at that time on the basis of the Revenue material alone.

The hill

[173] That part of the agreed area which we can conveniently refer to as the hill (parcels 0051 and 1971 on Production 55) simply forms part of a larger area lying to the east of it on the Inland Revenue map and, although we were not taken to the relevant entry in the field record book, seems to have been in separate occupancy. No evidence was proffered as to the nature of the occupancy of that land at the time of the survey. There was no indication that it had any connection with the main body of the present holding lying to the north of it.

[174] In that regard, the survey has to be regarded as being unsupportive of the applicant’s position. That said, the present status of the hill land is not in dispute. Both parties are agreed that it is part of the holding today. It is unnecessary to say more about it at this juncture.

Field at railway

[175] In the Inland Revenue survey, the field at the north east of the hill, parcel number 568 on Production 54 and 1180 on Production 55, appears to have been linked to the occupancy of land lying to the north of it and labelled “111” on the map, Production 40. That ground lies to the east of the agreed and disputed areas. In other words the field apparently had no connection with any of the subjects to the west of it and, accordingly, no apparent occupancy connection with the area labelled “41” which comprises the undisputed main arable land of the croft.

[176] We had the impression from our inspection that the earlier railway crossing arrangements would have been consistent with the field being accessed from the land immediately to the north of it.

[177] Unlike the hill, the field does appear as a distinct enclosed parcel which was identified on later maps and can readily be located on the ground. Otherwise, as with the hill, it is a matter of agreement between the parties that this field is a part of the croft and we make no further comment at this stage.

Plague field

[178] The ‘plague’ field was referenced “40” on the Inland Revenue map and comprises a distinct enclosure extending in total to 2.073 acres. It is also labelled 0028 extending to 2.04 acres on the 1967/71 map, Production 55. In the field record book, it was recorded as “croft”, extending to 2.073 acres, occupied by John Hay (possibly Kay), tenanted by Donald Fraser and owned by the Countess of Cromartie. It was noted as comprising agricultural land with no buildings.

[179] As Mr Nisbet submitted, the applicant offered no evidence or explanation as to how and when the field might have become part of the holding if it was not then. Other than proximity, there is simply no apparent link to any other holding or area of occupancy. At best for the applicant, the Inland Revenue evidence can be taken to imply that the plague field was a croft at that time, but not one with any connection to the holding with which we are concerned today.

Moor Cottage

[180] This is reference number “144” and is described as house and garden occupied and tenanted by John Hay and owned by John A Fraser. The parcel was recorded as including a shed at the back of the house containing a one stall stable, loose box, coal cellar and cart shed with loft over. We surmise that this is likely to have been the same John Hay as was then occupying the plague field to the west, but nothing turns on that.

Woodland

[181] The woodland, parcel “546”, was recorded as being owned and occupied by the Countess of Cromartie. Mr Nisbet rightly points out that the applicant has offered no explanation as to how it might have come to be part of a tenanted croft, if it was not part of a holding subject to the 1886 or 1911 Acts at the time of the Inland Revenue survey.

[182] The area was described as “Scotch fir, fairly straight. 120 to ¼ ac. 5” diar. at 12’0” high. 20’0” high”. There was a suggestion in evidence that the present trees were planted as a shelter belt in around 1920. If that is correct, then the inference is that the ones existing at the time of the survey had been felled and the area subsequently re-stocked, but nothing turns on that.

[183] It would appear from the Ordnance Survey maps that this area has been woodland since at least 1876. The description of the trees and their population density implies positive management of the area and not simply uncontrolled natural regeneration. As a general rule, it was only arable and pasture land which was apt to come under the ambit of the crofting legislation in 1886. We accept the possibility that at some time the parcel was positively designed, created and planted as a shelter belt for the benefit of adjacent land being used for agricultural purposes. The question of the status of woodland being present on areas of land which were otherwise either arable or pasture has to be considered in a broader context. It may be a matter of degree and accordingly it would be wrong to draw support as to the status of the woodland at Blairninich one way or the other from that viewpoint.

[184] The field record book contains an entry “Estimated Rent, £0.7/6 for grazing”. Nothing can really be taken from that, but it could be said to indicate that even though not apparently let at the time, the under-storey may well have been grazed or have been assessed as suitable for grazing then.

[185] Nonetheless, we are satisfied that the proper inference to be drawn from the Inland Revenue material in respect of the woodland hinges on the occupancy. On the face of it, the ground is owner-occupied. It is possible that it could have been vacant croft land at the time, but nothing points to that and we conclude on balance of probabilities that it was not then subject to crofting tenure.

Steading, house and surrounding land

[186] The area comprised in parcel and reference number “41” was recorded as comprising a “house, steading and croft”, extending to 41.548 acres, occupied and tenanted by Murdo Cameron and owned by the Countess of Cromartie (Production 42). For the purposes of this part of our discussion and analysis, it can be described as comprising all of the agreed area lying to the north of the hill, with the exception of the field at the railway referred to earlier, together with that part of the disputed area not covered above under the heads ‘plague field’ and ‘woodland’.

[187] We need say little about the element of it which forms part of the agreed area, other than noting that, at the time of the compilation of the 1906 Ordnance Survey map, there were no houses lying to the west of what is now called Old Inn East and Old Inn West. It seems that the land now comprising the sites of those houses and their associated garden ground was occupied by Murdo Cameron along with the other ground to the south. Parties have excluded those sites from the agreed area. We heard a little about the dates of their construction, but there was no discussion as to their precise status at the time of the Inland Revenue survey. All that can be said is that Murdo Cameron was apparently occupying the land at the time.

[188] In terms of parties’ agreement, it is also the case that the sites of the two semi-detached houses known as Old Inn East and Old Inn West and their associated garden / amenity ground are not part of the croft, so, whatever their history, nothing more need be said about them at this stage. It is clear enough that they were being occupied by Murdo Cameron at the time of the survey, but on the evidence of the survey alone, it would be going too far to draw a firm conclusion that they were part of a holding which was subject to crofting tenure.

[189] The focus of the evidence relating to reference “41” was on the steading building. We are mindful, however, that the remainder of the land comprised in the parcel labelled 629 on the 1906 Ordnance Survey map (Production 54) also includes the land immediately surrounding the steading and the access route from the public road. At the time it was all occupied by Murdo Cameron along with the main arable area of what is agreed to be part of the croft now.

[190] The steading building was described in some detail: “Colt House Byre with 4 double stalls, Barn Cartshed & stable with 4 stalls & Loft over – Fair repair except roof of byre which is in bad repair”. That description accords with our general understanding of its layout from the evidence at the hearing and our inspection. Whatever the basis of its occupancy, we think its capacity could reasonably be regarded as being appropriate to the extent and nature of the land with which it was then apparently associated.

[191] We also note that the parcel is said to contain “160 Scotch firs average 5” dia & 20’0” high”. The map shows an area of woodland to the west of the steading and it seems to us that the description is consistent with that.

[192] We, and parties, accept that Murdo Cameron was occupying this area as part and parcel of the “house, steading and croft” recorded in the field record book. At first blush, the Inland Revenue evidence could well be seen to be supportive of the applicant’s position in relation to the steading. It was clearly recorded as being part of a parcel of land being occupied by Mr Cameron as tenant. That parcel contained the main body of the arable land of the croft as it is today.

[193] But, as submitted by Mr Nisbet, the description of the subjects gives rise to an element of uncertainty as to what the precise nature of Mr Cameron’s tenancy was. We simply have no idea whether those conducting the survey had given any thought to that. If the legal niceties of crofting tenure were understood, then the separation of the description of the subjects into its three elements could be said to be significant.

[194] But no relevant evidence was led in that regard. Accordingly, we need to be cautious in considering whether the steading area was then part of a crofting tenancy. It could have been that Mr Cameron’s occupancy of these parts of the disputed area was on the same basis as Mr Macleod. However, in isolation and in the absence of any other evidence, we accept that the Inland Revenue material tends to support the applicant’s position that the steading building and the ground surrounding it within parcel 629 on the 1906 Ordnance Survey map, Production 54, were part of one croft holding at that time.

Enlargement

[195] Whatever reliance we place on the Inland Revenue material, the inference to be drawn from it is that the holding was considerably smaller in around 1909 – 1915 than it is now. No matter what the size or precise extent of the holding in the early part of the 20th century, it is clearly much larger now. If land was added, then we do not know how or when such enlargement came about. We accept that amalgamation could have taken place. Similarly, other land could have been added by agreement.

[196] Based on the acceptance that at least the major part of parcel reference “41” on the Inland Revenue survey has always been part of the croft, then it could be said that land comprising the hill parcel as we know it today has somehow been defined and added to the holding. The same is true of the field at the railway. Whilst there is no evidence of actual or implied agreement, having regard to the decision in Maclachlan v Bruce & Others [SLC 18/13 order of 28 March 2013, available at http://www.scottish-land-court.org.uk/decisions/recent-decisions], we are satisfied that such enlargement could have come about by agreement and without recourse to formal procedures.

[197] In the present case, however, unlike in Maclachlan, parties are agreed that the “added” areas – namely the hill and the field at the railway – form part of the croft. Since the matter is not disputed, we do not require to undertake any further analysis.

Summary

[198] Both parties, rightly we think, accept that the Inland Revenue material does provide worthwhile evidence of occupation at the time. But, as we have indicated above, the value of that evidence, and so reliance upon it by the applicant, is limited in three ways. Firstly, whatever parts of that land were under crofting tenure, the extent of the holding then was considerably smaller than even the agreed extent today; secondly, two significant elements of the disputed area, namely the plague field and the woodland cannot reasonably be said to have formed any part of the Old Inn or Blairninich holding at that time; and thirdly, whilst the steading and the area immediately surrounding it were part of one tenement, it cannot be said with confidence that all of that parcel was under crofting tenure.

[199] Accordingly, whilst at first blush the Inland Revenue might have been expected to have been of assistance to us in reaching a view as to the status of the disputed area, in the final analysis it has not greatly influence the outcome. It is accepted, however, that when the Inland Revenue evidence is considered in isolation, the steading area could be assumed to be part of the holding at that time.

1955 Registration – area matching

[200] The applicant was criticised for relying heavily on the accuracy of the Register of Crofts and then advancing an extent of the holding as set out in her plan (Production 6) which exceeded the area recorded in the Register. As matters have turned out, said reliance was certainly misplaced. However, it may be noted that Mr Forster had also engaged in a significant exercise which was founded on an attempt to match the acreage. As outlined earlier, neither side has been able to substantiate the provenance of the measured extent of the croft as declared in 1955/56.

[201] Accordingly, at its best in this case, the entry in the Register can be seen as giving an approximate value to the measured extent of the holding. Beyond that, we have not found this tranche of evidence / submission of any assistance in determining the footprint of the holding as it was understood to be by the estate in 1955/56. We have had to rely on other evidence for that.

[202] It is a matter of agreement that the holding, whatever its extent, qualified for croft status in terms of section 3 of the Crofters (Scotland) Act 1955 (“the 1955 Act”) and that it was a holding to which the 1911 Act had applied. It may be noted that we have seen no formal record of it having been a holding to which the 1911 Act applied, but nothing hinges on that.

[203] It is our understanding that blank “landlord returns” were prepared and sent to each estate and were ‘pre-populated’ with data contained in the Valuation Roll of 1954 / 1955 – in this case “Land and House” occupied by “John Macleod” at “Blairninich”. The return here (Production 25) was populated to show the arable area as 36 acres and 2 roods with the outrun at 45 acres and 2 roods. That same information was contained in the extract from the Register of Crofts in respect of the holding at 19 April 1971 (Production 38). It is not doubted that the source of the entry in the Register was the landlord’s return. It is clear that, prior to the amendment to the Register made by the Crofters Commission in 1993 at the request of the landlord, the apparent extent of the croft remained at 82 acres or 33.18 hectares.

[204] It might be thought that a representative of the estate would have entered the figures on the landlord’s return after some investigation into the extent of the croft as at 1955. The problem for us, and for parties, is that we simply have no idea where the figures came from. We do not know who completed the form or what information that person used to arrive at the figures then provided. We know that by 1985 estate records were poor – it is possible that they were no better in 1955. As it seems to us, that was why parties set about trying to identify a footprint on the ground and on the Ordnance Survey maps which matched the entry in the Register. But, despite their extensive attempts, no clear and wholly defensible match could be found.

[205] Some evidence and submission was directed at Ordnance Survey maps having inherent inaccuracy. Our own experience is that any inaccuracy is seldom of significance when maps are being used as evidence in a boundary or status dispute such as this. In this case, and in many other cases, we have found that if one superimposes the 1876, 1906 and 1967/71 map onto the modern digital version, the correlation – vis a vis field boundaries, for instance – is very close indeed. On the basis of our inspection, we did not detect any hint of such errors having been made in the first place in recording what was on the ground. The same is true of the measured extent of the various parcels whose shape and size appear to have varied very little over the past 140 years or so. That view was essentially endorsed by Mr Forster.

[206] Discussions about the effect of a relatively small shift of the hill fence to the east or west or indeed of the effect of slope on acreage calculation became irrelevant once the precise measured extent of the croft ceased to be crucial. We do not accept that the absence of any fence line on the maps lodged (which were based on revisions to the Ordnance Survey maps between 1904 and 1967/71) necessarily indicates that the fence was erected after the compilation of the 1967/71 map. It is our understanding that although additional surveys were carried out in the interim, their extent was limited such that absence of features on a print could not be taken as reliable evidence that they did not exist at the time.

[207] More fundamentally, however, parties made the not unreasonable assumption that whoever compiled the figures for the landlord’s return would have had available to them the relevant Ordnance Survey maps. In 1955, the most up to date versions of the 1:2500 maps would have been founded on the second edition of the County Series – in this case Production 54, which was published in 1906. The more recent National Grid series had not been published at that time. Accordingly, it seems likely that any calculations would have been based on the parcel numbers and areas recorded on the earlier map.

[208] We do not underestimate the attempts to “find a match”. However, once that proved to be impossible, any firm reliance on the precise acreage of the croft as being 82 acres was effectively doomed. Accordingly, comprehensive as it was, we see no point in narrating the basis of the calculations. They are quite fully and we think reasonably accurately summarised in Mr Nisbet’s written submissions and, of course, the respondents’ analysis is clearly set out on Productions 74 and 75.

[209] We accept the submission that entry in the Register does not constitute a holding as a croft – Palmer’s Trustees v Crofters Commission 1990 SLT (Land Ct) 21. But that is not the issue here. At 24, the Court says: “There is accordingly no question of any current entries [in the Register of Crofts] having to be regarded as final or conclusive….”. Thus, even if a holding is accepted as having croft status, the record of its measured extent in the Register does not constitute irrevocable evidence of the true extent. Where other evidence is perhaps lacking, then it is a perfectly reasonable starting point in any analysis of the status or extent of a holding to look at what the Register contains. The problem, as illustrated clearly in the present case and not infrequently elsewhere in our experience, is that evidence of the basis for the data supplied to populate the Register has not been forthcoming.

[210] There was some discussion as to how close a match might have to be such that it could be said to be “correct”. Even if somehow a “perfect fit” had been achieved, we doubt whether that alone would have availed either side in light of the other evidence we heard. That being so, the submission to the effect that the estate had somehow attempted to remove an area of ground from the croft, without recourse to either decrofting or resumption, becomes a little hollow.

[211] Although parties had appeared to abandon attempts at matching in the course of the hearing, the matter was still aired in closing submissions. It is clear that no-one knows how the figures on the landlord’s return were arrived at and there had been no apparent attempt to re-visit them until relatively recently. Mr MacLeod submitted that his client’s proposal showed the area to be close to 33.18 hectares. Mr Nisbet submitted that it was possible to exclude the disputed area in its entirely from the holding and achieve a reasonable fit to the measurements. Both may be accurate statements, but they take us nowhere.

[212] We do not necessarily agree with Mr Nisbet that the basis of the figures returned by the estate in 1955/56 had not come from Ordnance Survey records. We simply do not know, with any certainty, which particular fields or enclosures or parts of them were thought to be part of the croft at that time. That is not the same thing as saying that the measurement was not based on what was contained in an Ordnance Survey map.

[213] It should not be thought that, in another case, it would not be possible to place some reliance on the entry in the Register. Where it could be shown that the footprint of the croft and the measured extent taken from the Ordnance Survey parcel acreages coincided with the Commission’s record, then that might well turn out to be good evidence of the footprint of a croft at the time the data for the entry was gathered.

Use of the disputed area

[214] In terms of the Valuation Roll (Production 32) John Macleod had appeared as occupier of “land and house” at Blairninich by around 1950/51. It is clear that he was the head shepherd on the estate. There is an entry in the same Valuation Roll for “house and land” at Glenskiach Farm. Under the heading “Tenant and Occupier”, the entry is “Proprietor for John Macleod, shepherd”. The evidence as to (a) when John Macleod came to live at Blairninich and (b) when he became tenant of Old Inn or Blairninich croft was not clear. But that is not of great importance here.

[215] There seems to be little doubt that at least by 1955 the Macleods had moved to Old Inn East and John Macleod had become tenant of the croft. In terms of the evidence, we accept that John Macleod used the steading building. He could hardly have done so without also using at least some parts of the remainder of the disputed area. Whatever use he made, it is clear – and now a matter of agreement between parties – that Rod Macleod had been using the whole of the disputed area for at least 15 years prior to his assignation of the croft tenancy to Alasdair MacNab in 1993.

[216] Unsurprisingly, some of the witnesses who vouched that use thought the disputed area was a part of the croft. We are not satisfied that their view was based on anything they had been told by John or Rod Macleod. It is more likely that it had not occurred to any of the applicant’s witnesses that there was any difference in ‘status’ between the agreed area and the disputed area. It could therefore rightly, but not particularly helpfully, be said that the whole subjects had “the badge of crofting” and that the disputed area was used by Mr Macleod for “crofting activities”.

[217] The only witnesses who were able to testify on any secure basis for our purposes that the disputed area, or any part of it, might be part of the croft or under a crofting tenancy were Alex Dunn and Hamish Polson. They were the only witnesses who had positively discussed the matter with Rod Macleod. We also had hearsay evidence from Mr Dunn as to the nature of Mr Bowlt’s communings with Mr Macleod. Accordingly, as far as actual use is concerned, it is unnecessary to say much about the evidence of the other witnesses under this head. There is simply no doubt that Rod Macleod used all of the disputed area, including the steading. To the outside observer, that use would have appeared to be as part and parcel of his croft. He ran the agreed and disputed areas as one.

[218] There is no doubt that, at least towards the end of his tenancy and probably for most of it, the fences between the agreed and disputed areas were not stock-proof. The same was true of fences within the disputed area. Once stock were on the land in the disputed area, they could roam anywhere within it. Grazing throughout the area would have taken place whether it was intended or not. It might be thought that the question of whether Mr Macleod’s use of the disputed area was deliberate or not was important. Would it have made any difference if the fences had been maintained in stock-proof condition? We think not. In our view, the critical issue in this case involves us ascertaining whether such use, however it came about, was founded upon the disputed area, or any parts of it, being part of the croft as let to Mr Macleod by the estate.

[219] Although it was a matter of agreement that the house at Old Inn East is not any part of the croft, the issue of its status had been aired in the pleadings and the nature of its occupancy was raised in evidence. The whole tenor of the evidence was that the house had been occupied by the Macleods on a grace and favour basis. That basis of occupancy was not challenged by the applicant. All we take from that is that it tended to support the view, which was expressed by several witnesses, that the estate and the late Earl had a benevolent attitude towards their former employees.

[220] We accept the evidence that Mr MacKenzie, who at one time occupied Moor Cottage, may well have used the plague field at the same time as Rod Macleod did. The evidence as to the basis of Mr MacKenzie’s use is not clear. There was no suggestion that he had a crofting tenancy. As will be seen, his use of the field has not affected our decision one way or the other.

[221] It is clear enough that there was some form of sheep handling facility in the woodland – lying some fifty metres south of the steading building. Although we were able to locate the remnants of it at inspection, the evidence as to the nature and potential utility of the facility is not clear. There was some evidence that dipping had been carried out elsewhere.

[222] Although there was a suggestion that the fank might have been 100 years old, it is far from clear when it was first installed. There is no evidence at all as to who provided it. However, its existence adds support to the evidence of use of the woodland for livestock rearing purposes and suggests that such use was, at some stage, deliberate. It is now accepted that use for grazing has taken place. Whether or not the woodland had originally been established to provide shelter to the surrounding land, it is hardly surprising that handling facilities came to be located there. If there had been long term use of the woodland for grazing – and we do not consider that to be proven – it might well have been seen by either the owner or the occupier as a sensible place to site a fank.

[223] Mr Nisbet advanced support for his client’s case on the basis that there had been evidence of estate use of the disputed subjects. We accept that the Macleods may have had an estate pony on the disputed subjects. The tenor of the evidence was that said pony had been one used by John Macleod in connection with his employment as shepherd on the estate. We would be slow to class the grazing and stabling of the pony on the land as evidencing use by the landlord. As landlord, the estate would have had certain rights to use the land even if it was subject to a crofting tenancy, although that would not normally extend to grazing use. Nothing turns on this.

Basis of use of the disputed area
Introduction

[224] Whatever the background to the applicant seeking to challenge the extent of the croft as she had originally understood it to be, it is now a matter of agreement between both parties that Rod Macleod (and most probably his father before him) used all of the disputed area in association with the occupancy of the agreed part of the croft. We heard a great deal of evidence on this topic and whilst the precise detail and extent of use may not be clear, it would have been inconceivable for parties not to have agreed on this aspect. That is why it was unnecessary for us to narrate the detail of that branch of the evidence and why we kept the previous chapter comparatively brief.

[225] Where parties fundamentally disagree is as to what is to be made of the fact that the disputed area was openly used by the tenant(s) of Blairninich (otherwise Old Inn) Croft from sometime around the mid 1950s through to 1993 when the croft was assigned.

[226] It seems to us to have been an entirely reasonable starting point for the applicant to say that since the disputed area had been occupied by the crofter, it was likely to have been on the basis of it being a part of the croft. Having regard to what Kenneth Stewart, Ian MacDonald and Roseann Christie told us, it is unsurprising that the Macnabs had come to that view. But matters were not that simple and it was necessary to look beyond that.

[227] We have undisputed evidence that the occupancy of the house by the Macleods was on a grace and favour arrangement. Not even the applicant now suggests that the house is part of the croft. As will be seen, our analysis of the evidence leads us to the view that the occupancy of the field, the steading and its curtilage and the woodland was at best for the applicant by informal agreement or tolerance and not – on the evidence – as part of a crofting tenancy.

Steading repairs

[228] The evidence of the condition of the steading building, of its repair or refurbishment and of any question of grant aid was somewhat unsatisfactory. For what it is worth, we are satisfied that in or around 1978 certain repairs were carried out to the roof of the middle and eastern sections of the building. The then slated roofs of those sections had failed and were replaced by timber-trussed structures with purlins and clad with corrugated sheeting.

[229] Beyond that, there seemed to us to be confusing evidence as to precisely which sections were worked on and, to an extent, whether the same building was under discussion at all times. Whilst the evidence seemed clear that “Onduline” sheeting had been used, we are satisfied that the sheeting now in place on the middle and eastern sections is fibre-cement based. That sheeting is in a moderate state of repair now and we had no positive evidence that the sheeting installed in 1978 or so had subsequently been replaced.

[230] The evidence from Mr Macnab in regard to Rod Macleod having received grant aid in respect of roof repairs to the building was unsatisfactory. We accept that he had relevant experience of the administration of CCAGS during his period of employment with the Crofters Commission. However it is sufficient to say that whilst it may be that Mr Macleod did receive grant aid for work carried out in connection with his holding, it is far from clear that the grant certified on 11 November 1988 was in respect of roof repairs to the steading building.

[231] Even if it had been shown that grant aid had been paid in accordance with Mr Macnab’s position, we do not think there was sufficient evidence to show that it was an essential pre-requisite of that grant being paid that the building was an integral part of his croft tenancy.

[232] We take nothing from the evidence, which we accept, that the estate instructed and funded repairs to the steading building. As it is not disputed that it belongs to the estate, then it is not necessarily surprising that the estate chose to repair it. That said, if it was subject to crofting tenure, then responsibility for upkeep, in law, lay with the crofter. The evidence was, however, that Rod Macleod had not been one to attend to repairs and maintenance of fixed equipment. It is perhaps hardly surprising, therefore, that the owner would have wished to ensure that the building did not end up being wholly derelict and of no value or use in future. It does not show where legal responsibility for upkeep lay.

Alex Dunn’s discussion with Rod Macleod

[233] The first evidence as to the basis of Mr Macleod’s use of the disputed subjects came from Mr Dunn’s discussions with him at the time of the complaints received from the occupants of Old Inn West in regard to damp and smoke ingress to their house – alleged to have been caused by deterioration of the fabric of the next door semi-detached cottage which Mr Macleod was occupying. There was no challenge to Mr Dunn’s evidence and his recall of said discussions. We are satisfied that Mr Macleod voluntarily told Mr Dunn in or around early 1985 that he did not think the disputed area was part of his croft.

[234] However no actual issue in this regard appears to have arisen until much later. The first hint of concern was in relation to the plague field.

Resumption in 1985

[235] It is clear that Mr Dunn had been largely responsible for the preparation and lodging of the application to this court on 4 April 1985 in which resumption of a small area of ground to improve the access to Old Inn East cottage was sought. However, he had written to the Court on 27 March 1985 seeking some guidance on the matter. Whilst his recollection of the detail of the written material was not particularly clear, we are satisfied that, for the purposes of this case, nothing can be taken from the fact that he entered the area of the croft on the application form as 33.18 hectares. Estate records at the time when he had taken over ‘factoring’ of the estate were extremely poor. Whatever the original source of the figure was, we accept that his entering the figure on the application form was not as a result of any attempt by him to ascertain or confirm the extent of the croft.

[236] The figure had come from some record held at the estate office or elsewhere. Perhaps unsurprisingly it coincided with the one which had either been held by, or computed by, the estate or someone acting on its behalf at the time of the return made to the then Crofters Commission in or around 1955/56 – Production 25. Accordingly, we do not accept Mr MacLeod’s submission that the area of the croft was confirmed by the estate at that time. Nor do we accept that it was somehow ratified by the Land Court; we doubt whether it would even have been considered. It was simply repetition of an earlier figure. Whether or not that figure was accurate in the first place is a different issue.

[237] Although something was made of the 1985 resumption application as evidencing that land on and to the east of the access route to the croft running past Old Inn East was croft land, we are satisfied on the basis of Mr Dunn’s evidence that, at the time, he had not given much thought to any question of the boundaries of the croft. Clearly, however, he was already aware of Mr Macleod’s use of the disputed subjects and his view as to the basis of his occupation. No doubt, had he given the matter some thought, that would have alerted Mr Dunn to the possibility that no part of the access route was subject to Mr Macleod’s crofting tenancy. However it is clear from the material then lodged that the access was viewed as being common to both the house and croft; that the croft and house were then considered to be under separate leases; and that the resumed area “will go with neither house nor croft, but will be an area of common access” (Production 66).

[238] It was entirely reasonable for the applicant to found on the documentation lodged in connection with the resumption application as evidence of the status of the ground. However, now that it has been spoken to by its author, we are satisfied that it is more or less neutral as evidence of the actual status of the ground next to the access track. Mr Dunn’s evidence on this point was wholly credible, even if not particularly clear. We accept that he did not know with any degree of certainty whether the land which the estate was seeking to have resumed, or indeed the land lying immediately to the south and east of it, was part of the croft.

[239] It was unquestionably used for access to the croft and in light of Mr Dunn’s evidence and his state of knowledge at the time, it is not surprising that resumption was sought. If nothing else, it would ensure that access to the house would not be hampered by any potential rights of a crofting tenant beyond rights to use the route. We might add for completeness that on our inspection we attempted to locate the footprint of the area for which resumption had been authorised. It seems to us that said area does not lie anywhere on the present track, but rather it lies to the west of it.

Plague field : 1992

[240] The first document hinting at the estate having concerns about the status of the disputed subjects was the letter to the Crofters Commission from Mr Dunn dated 19 October 1992 (Production 59) in which he sought assurance that parcel 0028 on the 1967/71 Ordnance Survey map (the plague field) was not part of the croft. There was no hint at that stage – at least as far as the evidence we have goes – of any actual issue arising from the forthcoming assignation, but it is plain that Mr Dunn had been aware of Mr Macleod’s intention to assign. The letter alluded to potential use for development and referred to a map (Production 3) which was said to be based on a Department of Agriculture and Fisheries for Scotland plan. Whatever the provenance of Production 3 and what it was purported to illustrate, a strong inference can be drawn that the author thought that the plague field lay outwith the croft.

[241] It is clear that Mr Dunn, by that stage, was of that view. It was a view which he would have been entitled to take having regard to his earlier conversations with Rod Macleod. Production 3 was not really spoken to in evidence. It is plain that the red lines have been added to a black and white copy of some other map. To take anything more from it would have necessitated more evidence and preferably sight of the Department map itself. We can simply note that it could also be taken to suggest that the majority of the woodland was not part of the croft either. It could also be taken to suggest that its author thought the steading and surrounding area was part of the croft or possibly that he was unsure of the matter. But for present purposes we are not entitled to take anything more from it than identity of field 0028 as the one being referred to in the letter.

Advertisement of assignation

[242] Offers for the assignation of Mr Macleod’s tenancy of the croft were sought by way of an advertisement (Productions 13 and 36). Neither of these copy documents was spoken to and we do not know who had written “1991” on Production 13. It can simply be noted that elsewhere on the photocopy of the journal in which the advert was placed a date of March 1993 appears. We simply do not know precisely when the advertisement was placed. Nor do we know what instructions had been given to Mr Macleod’s solicitors in regard to it.

[243] Accordingly it is not possible to say with any degree of certainty whether it pre-dated discussions between Mr Bowlt and Mr Macleod when the map was prepared for use in connection with the Integrated Administration and Control Scheme (IACS). The advertisement narrates that the arable acreage is 32.5 acres and the outrun 45.5 acres. That is not in accord with the 1955/56 return nor is it in accord with what was agreed with Mr Bowlt. That is unsatisfactory from our viewpoint, but we doubt that anything turns on it. That is so because we do no rely on the measured extent of the croft in reaching our decision.

IACS

[244] Although we did not have much detail of the process, it is clear enough that Mr Bowlt and Mr Macleod met and agreed the extent of the croft for the purposes of preparation of plans to accompany an application in connection with claims under the (then) new IACS arrangements for agricultural support. We do not know exactly when the meeting or meetings were held or the basis of any discussions. It is clear enough however that the exercise had been completed before 15 June 1993, the date upon which Mr Bowlt wrote to Mr Macleod’s solicitors seeking confirmation that their client was content with the plan and related schedule of acreages (Production 14).

[245] It is not disputed that Mr Bowlt and Mr Macleod agreed the geographical and measured extent of the croft and that said agreement is properly represented by reference to the schedule and map attached to the letter of 15 June 1993. It is fundamental to the outcome of this case that we reach a view as to the basis of that agreement.

Bowlt / Macleod agreement

[246] Mr Macleod’s solicitors replied to the letter of 15 June 1993 on 22 June (Production 15) confirming that the “plan and measurements” were “acceptable” to Mr Macleod. Whilst it might be said that the wording of the letter fell short of confirming any agreement, we are satisfied on the basis of other evidence that there was agreement and that it was as set out in Mr Bowlt’s earlier letter with its attachments. For one thing, there is simply no contrary evidence. There was no hint of any objection by Mr Macleod at any stage. Of course it is possible, as the applicant would have it, that Mr Macleod was coerced into agreeing an area of crofting occupancy which was less than he thought he was entitled to. But there is no evidence of that. The weight of evidence points the other way.

[247] We have already accepted that Mr Macleod did not consider, in 1985, that any of the disputed subjects formed part of his croft. Of course we cannot now ascertain why he thought that, but in the absence of any contradictory material, we think it can be assumed that his view then had been a long-standing one and based on what had been let to his father before him. There is no hint of him having had any change of heart between 1985 and 1993. Nor is there any hint of pressure being brought to bear on him at a time when he might have been less able to resist it. We heard that although not necessarily outwardly bright, he was quite shrewd and would not have been one to give up rights easily.

[248] We heard about the generous nature of the late Earl of Cromartie. His benevolent character is not disputed. We are prepared to accept that during his period as owner of the estate it was quite likely that occupancy of land by former employees and their families and others outwith the formal extent of the subjects let to them might be tolerated, particularly in a situation where it did not lead to any negative imposition on the rights of the estate or others at the time. It is accepted that Rod Macleod and his father before him were in fact making use of the disputed subjects. The evidence of the estate’s attitude to such occupancy lends support to the submission that the basis of their use, if it was not founded on any positive grant or right, could well have been through tolerance.

[249] Although there is a hint that relationships between Mr Macleod and the estate might have soured a little in connection with his attitude to funding of the refurbishment of his house in 1985 (Productions 10 and 11), there was no suggestion in the evidence from Mr Dunn that there was any ongoing effect on subsequent communings.

[250] Set against the background of the estate’s general attitude to its tenants – and there was no evidence that that had changed following the death of the late Earl – we think it likely that the agreement did reflect Mr Macleod’s received view of the extent of his crofting tenancy. In other words, we are satisfied that he was not coerced into agreeing to give up anything to which he was entitled. It has not been demonstrated to us that the agreement came about as a result of any underhand actings by the landlords or their agents.

Amendment to the Register of Crofts

[251] In the correspondence between Mr Bowlt and Messrs Burns & Son it had been agreed between landlords and tenant that the Register of Crofts be amended to reflect the revised acreage. Mr Bowlt wrote to Crofters Commission on 2 July 1993 (Production 16), enclosing the map and schedule seeking that amendment. The Register was duly amended and an extract from it was enclosed with the Commission’s reply of 19 July (Production 17). It can simply be noted that the area then recorded as being held in tenancy by Roderick William Macleod was 15.43 hectares of arable and 15.41 hectares of outrun – a total of 30.84 hectares, which accords with the schedule at Production 14

[252] The content of Mr Bowlt’s letter of 2 July 1993 is entirely consistent with the evidence we heard. Neither the schedule nor the map were really spoken to in evidence. We have noted some minor errors in the recording of Ordnance Survey numbers and of acreages on the schedule when compared with what we consider would have been the current Ordnance Survey map at that time (Production 55). It can also be noted that the map appears to be based on 1:10,000 sheets. However it does narrate most of the parcel numbers from the 1:2500 sheet. It is clear enough that the map is consistent with the schedule. We are also satisfied that it is consistent with the present position of the respondents today as represented by Production 18.

[253] It can also be noted at this stage that said letter of 2 July 1993, in addition to seeking the amendment, took the form of a reply to the Commission’s notification to the estate’s lawyers of Mr Macleod’s proposed assignation to Mr MacNab.

Assignation

[254] Although Mr Polson’s evidence was somewhat confused in respect of dates, it is clear enough that he had discussed taking over the croft with Rod Macleod. We are satisfied that Mr Polson had not expected to have the disputed area included in his tenancy and, in particular, that Mr Macleod had told him there were no buildings on the croft.

[255] The formal process of assignation to Alasdair MacNab was not discussed in evidence and nothing hinges on it. The application for assignation appears to have been signed by Mr MacNab on 16 June 1993 and received by the Commission on 21 June. The Commission had advised the estate’s lawyers by letter of 22 June 1993 (Production 57) of receipt of the application for assignation. There is no doubt that by that time concerns as to the precise extent of the croft had been raised in the estate’s mind. The formal assignation process and correspondence about the agreement were contemporaneous.

[256] Although we did not have evidence as to exactly what ground Mr MacNab had understood he was taking over, it seems to be a matter of agreement that what was assigned to Mrs Macnab by him matched what he had taken over from Rod Macleod.

Development proposals

[257] We also heard evidence about proposals for use of the plague field for housing; of the woodland for a chalet park; and of the steading building for residential purposes. We accept that evidence, which is in fact vouched by some of the documentary material lodged.

[258] The respondents would have it that such proposals were an indication that the estate did not regard the various parts of the disputed area as being subject to crofting tenure. We do not agree that the fact that development was being considered demonstrates that the landlord was sure that the ground was free of crofting tenure. The estate could resume if the land was subject to crofting tenure, and would be aware that such development would be likely to meet the requirements of ‘reasonable purpose’ in relation to a resumption application. Thus the possible existence of a crofting tenancy over the subjects would not necessarily have deterred the estate from considering proposals for development. And at least as far as the plague field is concerned, it is clear that by 1992, the estate had concerns about the possibility of crofting status when it wrote to the Commission seeking confirmation that the parcel was not part of Blairninich Croft.

The hill

[259] There was no satisfactory explanation as to how the hill, if – as it appears – it was not part of the croft at the time of the Inland Revenue survey, came to be added. We were not taken to the field record book in relation to it. It is, of course, possible that it always formed part of the croft but that it was not, at least in 1904, fenced or enclosed. That was not an unusual feature for outrun in those days. We simply have no idea when the first fence was erected to enclose the land or by whom or on what basis the particular line on the 1967 map and seen today on the ground was chosen. Parties are agreed that the land to the west of it is part of the croft.

[260] It can be noted that the parcels which constitute the hill, OS 0051 and OS 1971 on Production 55, were included in the schedule and map which was agreed in 1993. We deduce from that that Rod Macleod, and probably his father before him, understood that those parcels were part of the croft as let to them.

[261] Thus the hill appears to have formed an integral part of the croft since at least 1955. The Inland Revenue material would tend to suggest that it was not part of the holding in the early 1900s. But its status is not in dispute. We do not require to make any determination in relation to it and so it is of no direct consequence for our purposes that the evidence of its history is lacking.

Field at railway

[262] We have no idea what Mr Macleod’s view was in regard to the field at the railway line. We do not even know if he used it. It could be that he thought that it was part of the croft when he advertised it for assignation. We simply do not know. Clearly he appears to have agreed that it was not part of the croft in 1993, so we must assume that even if he used it, it did not form part of his tenancy.

[263] There was no relevant evidence. We had the impression that there was still at least some doubt about it even recently. As outlined earlier, it did seem to us on inspection that the access arrangements as set out for crossing the railway had been more apt to linking the field with land effeiring to what we understand to be Milnain Croft than to Old Inn. But we do not know anything about the basis upon which parties have agreed that the field is part of the applicant’s croft and it is unnecessary to say more.

Summary

[264] We do not know the circumstances whereby Mr Bowlt came to prepare an IACS plan for the croft. However, in light of our analysis, it is clear that the estate was unsure at that time as to what the actual geographical extent of the croft was. The estate records were virtually non-existent. The relevant people on the estate’s side did not know – namely Mr Dunn and the present Earl. On the basis of the evidence we have, the only person whom it was thought would know was Rod Macleod.

[265] The respondents’ defence relies heavily on our acceptance that Rod Macleod did know. In the circumstances – and standing the absence of any other satisfactory material – we consider that to be a proper approach. We have good evidence of Mr Macleod’s use of the disputed area. Of course the evidence as to what he knew and thought, which is crucial to our deliberations, is entirely hearsay. The nature and value of hearsay evidence is often misunderstood. Where there is no other better evidence, a court is properly entitled – indeed obliged – to give weight to, and rely on, hearsay evidence which it considers to be reliable in all the circumstances.

[266] The tenor of the evidence would suggest that the relationship between the Macleod family and the estate’s principals was a good one. Of course we do not know exactly what agreement was made with the landlord when John Macleod took the tenancy in the 1950s. It could be expected that he would have told his son what the arrangement had been. There was no suggestion that the Macleods were the sort of people who might have sought to take advantage of the landlord’s benevolent disposition. We accept that Rod Macleod would have been fully aware of the true basis of his occupancy of the agreed and disputed areas – founded on what had been let to his father before him.

[267] It was at around the same time that John Macleod became tenant that the estate furnished the Crofters Commission with the information on the landlord’s return. Of course we do not know if the relevant people on the estate knew then exactly what constituted the croft. Even if parties today had been able to find an exact acreage match, it would not necessarily have availed them. All we are able to take from the figures entered in the landlord’s return is that John Macleod was let subjects which at the time of his entry was thought to be a croft of the order of 82 acres in extent.

[268] In the absence of any other relevant and conclusive evidence, we consider ourselves entitled to rely on what Rod Macleod thought was the extent of the crofting subjects let to him. At least insofar as the disputed area is concerned, we have concluded that he thought none of it was part of his crofting tenancy: Mr Dunn’s evidence. Were it not for the Inland Revenue material, that in itself would probably be sufficient for us to dispose of this case. However, that is not the only evidence of what Rod Macleod thought.

[269] Mr Polson’s evidence is also supportive of it. Perhaps the best evidence as to Rod Macleod’s view of the proper legal extent of the croft is contained in our chapter about the agreement made between Mr Macleod and Mr Bowlt. We would have much preferred to have heard from Mr Bowlt. However, there was no suggestion that what he had told Mr Forster was in any way false. As detailed above, we are satisfied that the area shown on the map, part of Production 14, properly represents what Rod Macleod thought was the extent of the croft.

Conclusion

[270] Having found that nothing can really be taken from the data in the 1955/56 Register of crofts in this case, we are effectively left with a choice between the Inland Revenue material and the analysis contained in the previous chapter. The virtually complete absence of any other history relating to the holding has added to the difficulty of resolving the dispute between parties.

[271] It will be recalled that the Inland Revenue material pointed to a holding which did not include the plague field, the woodland, the hill or the field at the railway. On its own, the Inland Revenue survey lent support to the applicant’s position that the steading and the land around it might well have been part of the holding at the time. But it was not clear from the field record book that the basis of the occupancy of the steading area by the then tenant was necessarily founded on it being part of a holding to which the 1886 and / or 1911 Acts applied. Accordingly that support for the applicant was weak and apt to be easily displaced by evidence pointing in the other direction.

[272] Whilst it is widely accepted that entry of a holding in the Register of Crofts does not constitute a guarantee that it is a croft of the extent therein recorded, it can normally be regarded as a useful guide in that regard. In the present case, despite considerable effort by the parties to identify on the ground what might be termed a ‘close fit’ with the entry for Blairninich, reliance on the Register has proved to be of no real assistance. Neither side was able to demonstrate a match which could be relied upon as evidence of what the landlord of the time thought comprised the croft. Both parties claimed that their final positions represented what might be termed as reasonably close fits. At best, the Register could be said to have provided guidance as to the approximate extent of the croft.

[273] We agree with parties that the statutory position is (and we think always has been) that removal of land from crofting tenure requires formal procedure: Crofters Commission v Mackay 1996 SLCR 72. It having been conceded that the area recorded in 1955/56 could not be relied upon as an accurate reflection of the extent of the croft at the time, the submission that the estate had in some underhand fashion sought to take land out of crofting tenure to suit its own ends was a somewhat empty one. We do not accept that the actions of the landlord in or around 1993 led to any change in the footprint of the croft on the ground.

[274] That being so, it could be said that we are left with a choice between the position in the early 1900s and the one prevailing from around the mid 1950s through to the present day. Parties have agreed that the holding is considerably larger now than it appeared to be at the time of Inland Revenue survey. Neither the plague field nor the woodland were apparently part of the holding at that time. We are satisfied that they were not part of the holding as let to John Macleod and that they are not part of the holding now.

[275] The Revenue evidence can therefore be taken to suggest a holding which included only parts of the disputed area and parts of the agreed area. The ‘Macleod era’ evidence indicates a holding comprising only the agreed area. That includes the hill and the field at the railway – yet there is simply no explanation as to how, if they were not part of the holding at the earlier time, they came to be part of it now. That in itself is unsatisfactory. But in the final analysis, it is not a question of choosing between the 1900s evidence and the later evidence in respect of the whole croft. What we have to decide – in light of parties’ agreement and our finding in regard to the plague field and woodland – is the status of the steading area. That is the choice: the only remaining area of doubt is the steading.

[276] At the time of the Revenue survey, the evidence is that it was occupied as a ‘unit’ along with a house and the main bulk of the arable land of the agreed area. By virtue of the description in the field record book of that ‘unit’ as “House, Steading & Croft” a doubt arises as to the basis of occupancy. We cannot positively say that the steading was part of a holding to which the crofting legislation applied. Any inference that it was can therefore be relatively easily displaced by other evidence.

[277] For the avoidance of doubt, we are satisfied on the basis of the evidence that Rod Macleod was not coerced in any underhand way to agree to a position whereby his croft was reduced in size from its proper legal extent in 1993. We reject the applicant’s submission that there had been “sleight of hand” by the estate.

[278] There is however good evidence that Rod Macleod had never regarded the steading area as being part of the holding which he had taken over from his father. There has been no evidence to support any suggestion that, whatever the status of the steading area when the Macleods took over, its status subsequently changed. On balance of probabilities, therefore, we have concluded that the steading area was not part of the croft at the time of the Inland Revenue survey and that it is not and never has been a part of the croft.

[279] We formally note that parties are agreed that all the land shown coloured light blue on the map, Production 34, is croft land in the tenancy of the applicant. That same area, under exception of the field OS 1170, but with, in addition, the two now decrofted house sites is synonymous with what Mr Macleod thought he had the tenancy of. In light of our determination, it is clear that he never had any rights in the disputed area, qua crofter of Blairninich Croft.

[280] Whilst it may be thought a little surprising that a holding of the extent of Old Inn Croft does not, or did not have a house or steading, we agree with Mr Nisbet that it is certainly not unique or unknown. We come across a number of “bare land” crofts in the course of exercising our jurisdiction under the Crofters (Scotland) Act 1993. Many crofts were originally let without a house or steading or indeed fencing, drainage and other land improvements. Having said that, most crofts do have such facilities – but they tend to have been provided by the crofter or his predecessors in tenancy.

[281] Before concluding, it is worth mentioning the question of onus. Mr Nisbet rightly submitted that, at the outset of the hearing, the onus was on the applicant to prove her case. Clearly she has not been able to do so. In those circumstances, as Mr Nisbet would have it, there was no obligation on the respondents to prove that the croft was of the extent as set out in their pleadings.

[282] However, once the evidence is out, onus generally tends to be of little moment. The respondents did in fact lead evidence which, at the same time as showing that the applicant’s position could not be supported, has actually enabled us to reach a view, on balance of probabilities, which supports their position as to the status of the disputed area. In a civil proof, that is normally sufficient. Accordingly we are able to make a positive finding in favour of the respondents.

[283] In those circumstances, we doubt if section 53A is engaged. That said, we noted Mr Nisbet’s submission to the effect that in application of that section, the Court could look at recent or current circumstances, including the fact that the house, plague field, steading and woodland had never been used by the applicant.

[284] We may add, therefore, that in light of (a) the concurrence of parties as to the agreed area; (b) the understanding of the two crofters who had been assigned the croft following the tenancy of Rod Macleod that the disputed area was not included in the subjects of their tenancy and was not used by them; and (c) our impression, on inspection, that the holding is a large and potentially productive arable and livestock rearing unit which is adequately resourced (whether by the tenant or landlord) without the disputed subjects being a part of them, it is likely that we would have reached the same view had it been necessary or appropriate to invoke section 53A.

Decision

[285] As outlined earlier, we consider that the only relevant dispute between the parties in this application as finally adjusted and debated at the hearing concerned the status of the disputed area. Accordingly, we consider it inappropriate to answer the first crave in its terms and decline to do so.

[286] The disputed area is clearly shown delineated and cross-hatched in red on Production 34. We find that said disputed area is not a part of Old Inn or Blairninich Croft.

[287] For the assistance of parties we also formally note their agreement that the area shown delineated in black and red and shaded light blue on Production 34, is part of the croft.

[288] In respect of the second crave, we invite parties submissions on expenses and continue the application in the normal way.

For the Applicant: Mr K MacLeod, Solicitor, MacLeods WS, Inverness

For the Respondents: Mr J Nisbet, Solicitor, Brodies LLP, Edinburgh