DIVISIONAL COURT

(D J Houston)

MACLACHLAN v BRUCE & OTHERS

(Application SLC 18/13 – Order of 28 March 2014)

CROFTING – COMMON GRAZINGS – WHETHER AREA PART OF – STATUS AT 1886 – CHANGE OF STATUS AFTER 1886 – EVIDENCE OUTWITH LIVING MEMORY – QUALITY AND WEIGHT OF EVIDENCE – HEARSAY – ORDNANCE SURVEY MAPS – WHETHER PASTURE OR NOT – EARLY STATUTORY POSITION – GRAZING RIGHT PERTINENT OF TENANCY – MUST BE IN LEASE OR ADDED BY AGREEMENT – IMPLIED AGREEMENT SUFFICIENT – NO STATUTORY IMPEDIMENT UP TO 1961

A shareholder in a common grazings sought declarator that a small area of land close to the in-bye ground of her croft was part of the grazings. There was no dispute as to the broad extent of the main body of the grazings nor as to the rights which various shareholders, including the applicant, held therein. The grazings had become subject to crofting tenure as at the passing of the Crofters Holdings (Scotland) Act 1886.

It was pled that either the disputed area formed part of the grazings in 1886 or, if it did not, then it had become part of the grazings at some time thereafter. For the latter to have come about, some form of agreement had to be proved. The quality and weight of evidence (including hearsay evidence) and aspects of its admissibility were discussed. Witnesses were credible and reliable, but the evidence which was germane to the outcome related to a period outwith living memory.

The decision fell to be made under the jurisdiction given to the Court under section 53(1)(d) of the Crofters (Scotland) Act 1993. However, there was little by way of relevant case law and it was necessary to trace the historic statutory framework applicable over the period from 1886 to the present day. In assessing the status of the land as at 1886, the Court considered the various prerequisites necessary for common grazings to have fallen under the ambit of the 1886 Act. As with croft land, the ground had to be arable or pasture to qualify, but some degree of tree or scrub cover was acceptable. Domination by woodland gave rise to a presumption that the land was not apt to be described as pasture and would not normally have become subject to the 1886 Act.

The Court’s analysis in chambers went beyond what was aired at the hearing. It had considered in detail evidence in the form of Ordnance Survey maps. That had to be treated with care in the absence of better evidence, but the Court concluded that it was most likely that the disputed area fell to be regarded as woodland. A concluded view as to the status in 1886 was not vital to resolve the dispute, because the Court was able to determine that whether or not the land had been subject to crofting status as it 1886, the evidence was sufficient to prove that it had since then become part of the grazing.

It was important to consider the factual situation at any point in time or over any specific period of time in the context of the contemporaneous statutory position. The period up to around 1956 was relevant, with little which had happened thereafter of any consequence. Ross v Graesser was discussed and distinguished. Obiter remarks were to be treated with care. Prescription was not considered to be relevant.

The key was that a pertinent of a crofting tenancy, such as a right of grazing, must have been included, or come to be included, in the lease by the landowner to the tenant of the croft land to which the right attached. Subject to any necessary statutory administrative procedures, if not included in the original lease, then such right may be established by express grant. Rights might be acquired through custom or long use, but that could only be so with at least the implied agreement of the landlord.

Based on the legislative provisions up to 1961, grant by the landlord or agreement between the landlord and tenant to add land or rights over land to an existing tenancy by way of enlargement would normally be sufficient to establish crofting status; and that without formal administrative processes at that time.

There was no evidence of any specific written or verbal agreement. The requirements necessary to establish an implied agreement were discussed in some detail. There was undisputed continuous occupancy of the disputed subjects from at least 1940. The Court was satisfied, on balance of probabilities, that such occupancy was based on an implied agreement between an earlier landlord and the crofters sharing in the grazing that the land was to be part of the grazing. Having regard to the statutory position, that was held to be sufficient for declarator that the subjects were now part of the grazing.

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

[1] We heard this application in Fort William on Thursday 24 October 2013. Mrs Jennifer MacLachlan, applicant, appeared in person and Stephen Smith, landlord respondent, appeared on behalf of himself and his co-owner Alistair Bruce. The Court is asked to determine whether a particular area of land forms part of the Galmore Common Grazings.

Authorities referred to

Board of Agriculture for Scotland v Macdonald 1914 SLCR 43
Castle and Others v Philp 2009 SLCR 21
Crofters Commission v Arran Limited and Others 1996 SLCR 103
Flavell v McIvor SLC 127/11 (unreported Order and Note of 18 July 2012)
Fraser v Spencer SLC 14/00 (unreported Order & Note of 16 October 2000)
Macdonald v MacNab and Another (No. 1) 2000 SLCR 133
Macdonald v Prentice’s Trustees 1993 SLT (Land Ct) 60
Munro v Forbes 1933 21 SLCR 21
Paterson and Others v National Trust for Scotland 1963 SLCR App 59
Reference by Crofters Commission under Section 53 Crofters (Scotland) Act 1993 SLC 121/11(Order and Note of 3 August 2012)
Ross v Graesser 1962 SC 66
Secretary of State for Scotland v Kennedy & Others (No.1) Inverness-shire RN 10593 (unreported)
Secretary of State for Scotland v Kennedy and Others (No.2) Inverness-shire RN 10648 (unreported)
Secretary of State for Scotland v McIntosh and Others Inverness-shire RN 12155 (unreported)
Smith v Murray 1990 SLCR 90
Spencer v Fraser SLC 14/00 (unreported Order and Note of 29 June 2004)
Whyte v Garden’s Trs 13 (1925) SLCR 99

Textbooks

Agnew Crofting Law

Statutory Material

Crofters Holdings (Scotland) Act 1886 (“the 1886 Act”)
Crofters Common Grazings Regulation Act 1891 (“the 1891 Act”)
Congested Districts (Scotland) Act (“the 1897 Act”)
Small Landholders (Scotland) Act 1911 (“1911 Act”)
Land Settlement (Scotland) Act 1919 (“the 1919 Act”)
Crofters (Scotland) Act 1955 (“the 1955 Act”)
Crofters (Scotland) Act 1961 (“1961 Act”)
Crofters (Scotland) Act 1993 as amended (“the 1993 Act”)
Crofting Reform (Scotland) Act 2010 (“the 2010 Act”)

Evidence and Submission

[2] As in many cases involving party litigants, the distinction between evidence and submission tends to become blurred. In these notes of the hearing itself, we have not attempted to separate the two.

[3] Mrs Jennifer Cecilia MacLachlan had helpfully prepared a written note of her proposed evidence in chief for the assistance of the Court. That document has been lodged in the application file and it is unnecessary to repeat it fully here. However, we shall set out what we consider to be the key elements of it as spoken to by her, as well as matters which were aired during her evidence. Her application was brought under section 53(1)(d) of the 1993 Act.

[4] Mrs MacLachlan confirmed that she was the crofter of 5 Achluachrach and that the croft had a one half share in the Galmore Common Grazings. She had obtained the tenancy of the croft in 2007 and had been on the Galmore grazings committee for four years. Her family had a long history of involvement in crofting and had been rooted in the area for many generations. Her researches showed that occupation of Glenspean had been stable for over 200 years, with the same families being tenants and sub-tenants during that time. Each generation had passed on to the next their knowledge and understanding of boundaries. That was based on continuous use of specific areas of ground without interfering with neighbours’ and landlords’ rights and it facilitated defence of such rights and privileges if it proved necessary.

[5] Her own family had been involved at Achluachrach for around one hundred years. Her great grandmother was from a Murlaggan crofting family and her great grandfather from Inverroy – both on Mackintosh estates. Her great grandfather acquired the tenancy of 3 Achluachrach in 1912 and so obtained a share in the Galmore grazings. He had bought a share in the sheep stock club. More recently her sister had succeeded to the croft tenancy. The croft had subsequently been divided and that had resulted in the applicant acquiring the said half share.

[6] She had become a member of the grazings committee around four years ago. Presently she lived in Alexandria. However, she had lived in the Borders until six years of age, then had moved to live with her grandparents until she was nine years old. She had attended school and church services in Roy Bridge at that time.

[7] Thus her own knowledge of the area had been founded upon her family’s experience of continuous occupancy in the vicinity since the 1700s. As the eldest grandchild of her generation, Mrs MacLachlan had spent a lot of time with her grandparents and was coached in the ‘old ways’. Her grandmother had died in 1975, at 82 years of age. The applicant had also gleaned information about the past from Jessie MacInnes, her aunt, who had died in 2000. It was her late aunt’s croft in which the applicant now had a half share.

[8] Mrs MacLachlan drew our attention to an article contained in Antiquarian Notes, Historical, Genealogical and Social (Second Series) Inverness-Shire written by Charles Fraser-Mackintosh in 1897, Production 17; also to Letters from the Highlands or The Famine of 1847 by Robert Somers, Production 18.

[9] The Napier Commission had heard evidence in 1884 from one Allan Macdonald, factor for The Mackintosh in which he had talked of Gaelmore as one of the club farms and comprising 7500 acres tenanted by 18 crofters. At that time there had been one lease – a minute of agreement listing all the tenants involved. Thus the tenants of Galmore and the Glenspean Estate had been around for a long time with a long history of occupation.

[10] The tenancies of the crofts in the three townships of Achluachrach, Murlaggan and Bohenie, with their associated shares in the Galmore grazings, had their origins in a joint tenancy of a sheep farm known as the Great Lot or Gaelmore under a lease from Mackintosh of Mackintosh in the late eighteenth century. Until recently, the majority of the present croft tenants had been descendants of the original joint tenants or club farmers. The grazings had originally been part of a large sheep farm, occupied by a head tenant and various sub-tenants. In Production 18, the Robert Somers letters, there was, at “Letter 27”, a description of the club-tenants on the Mackintosh estate in Glen Spean and Glen Roy as joint-stock companies of farmers where the “hill or pasturage of the farm is held strictly in common”.

[11] Originally on the ‘club farm’ system and thereafter on the common grazings, there was a common sheep stock – with shepherds appointed and paid for by the club and the members of the club giving assistance as necessary. In the early days, one tenant had been appointed as manager of the club and both her grandfather and great grandfather had been managers.

[12] At the time of the introduction of the crofting legislation, the shareholders ceased to be called joint farmers. They took on the status of ‘crofter’ but carried on as before – with the sheep being managed under a club system. The only real difference was that the rents were paid by each one individually rather than through the manager. Her grandmother and aunt had been well aware of boundaries – explaining to her, for instance, where she could play so as not to interfere with other crofts or the grounds of the lodge. They knew the extent of the Galmore ground.

[13] The applicant had traced the history of ownership of the original Mackintosh estate (Production 20). What remained today amounted only to the tenanted land of the crofting townships with the associated common grazing known as Galmore. The area of the grazings as claimed by the shareholders was shown on Production 2 and extended to around 7,000 acres, with nine crofters from the townships of Achluachrach, Murlaggan and Bohenie holding rights in them. The crofters utilised the land under the name of the Galmore Sheep Stock Club.

[14] The area of concern in the present case extended to some 2.001 hectares (4.944 acres) as shown outlined in red on Productions 1 and 16 and, in her view, formed part of the wider Galmore Common Grazings. It was known locally as the Gorge Park. She had been unable to find any maps or drawings which specifically delineated the extent of the Galmore Common Grazings.

[15] There was no statutory definition of common grazings, but no dispute that the Galmore Common Grazings were regulated in terms of statute. In effect, the dispute was as to the extent of those grazings. In Ross v Graesser, Lord Sorn had said that grazing rights might derive from custom, prescription or grant. She relied on those comments and proposed to show how the croft tenants and shareholders had occupied the ground, what their own knowledge of the boundaries was, how the landlords had used the land and what their reaction to the tenants’ use had been. She intended to show that the disputed area was subject to common grazings rights on that basis.

[16] When, at the age of 6 in the 1960s, she stayed with her grandparents at Achluachrach and attended school and church services in Roy Bridge, the Gorge Park was an open field with a roadside fence and a timber gate which lay open, resting against the fence. The remains of the fence could be seen in Production 21. At that time she recalled sheep being everywhere, with the only effective fences being around house gardens or croft fields and parks. The hill and the roadside verges were “well eaten down”.

[17] At the age of 9, her family had moved to Renfrewshire, but thereafter there had been visits to her grandparents from time to time. They had travelled via Fort William and when they reached the rock cutting at the Gorge Park there were always sheep at the corner – something she had to watch out for when she started to drive.

[18] The disputed area had been occupied for generations by the crofters of the townships of Galmore for the purpose of grazing sheep. It had been fenced and, in the past, used by shareholders as a tup park. When not used for that specific purpose, the land has been used as open grazing by the sheep stock club. She recalled the main road being widened and partly realigned at the time when she had lived with her grandparents, although it remained today in essentially the same position as it had been then. She remembered a fence which lay between the south verge of the road and the Gorge Park, although she was not sure whether or not it had been erected as part of accommodation works in connection with road improvements. There had always been sheep on the subjects.

[19] The current dispute began when Mrs MacLachlan had drawn up a list of possible sites on the common grazing for a house for her croft at 5 Achluachrach. Her late mother, Dolina MacInnes, was the grand-daughter of a tenant of 2 and 3 Achluachrach. In 2007 Mrs MacLachlan had asked her mother, who was then 81 years of age and had been born and brought up at Achluachrach, about possible sites for an apportionment of the grazings. At that time an arrangement was being considered whereby Mrs MacLachlan would be assigned the croft and her sister would buy the croft house. However, at the suggestion of the (then) Crofters Commission, the croft had been split, with her sister taking an assignation of one part and Mrs MacLachlan becoming a new tenant of the other part of it. The croft land itself was subject to flooding and so was unsuitable for a house site.

[20] She was looking for a potential apportionment site close to the croft and had initially looked at three sites, none of which had proved suitable. Her mother had suggested two other potential sites. One was the Gorge Park and the other the adjacent area at Woodend. Those two areas were part of the grazings and had always been used as part of Galmore. Mrs MacLachlan’s grandfather had been a manager and clerk, and her great uncles shepherds. Her mother had walked through the disputed subjects daily on her way to school. The main road ran through the common grazings. Old photos showed the hills as being very bare, with only a few birch and oak trees on the hill above the road. Her mother had been adamant that the subjects were part of the grazing. There had always been sheep there.

[21] Mrs MacLachlan also had three surviving aunts – one of them residing in Canada – and all had been surprised when told of the claims now being made by the landlord in regard to the subject land. Her now deceased cousin, who had lived at Murlaggan, also thought the ground was part of the common grazings. She cited a statement by her aunt, Miss Maryann MacInnes: Production 22. Miss MacInnes had until recently been a shareholder in the grazings and had indicated that during her lifetime the disputed site had been part of the common grazings. She had been a past member of the grazings committee and a former grazings clerk.

[22] Other shareholders had favoured these locations as potential sites for a house and, over time, public authorities had also come to support the proposal. The only dissenting voice had been that of the landlords who took the view that the proposed site was not part of the common grazing.

[23] Mr Ronald MacIntosh had written to the Court to advise that he had purchased two shares in the Galmore Sheep Stock Club in November 1970 and had been involved in running the Club ever since. He had not been aware of the Gorge Park ever being taken out of the grazings. In the past it had been a much used and valued part of the grazings for the Sheep Stock Club – particularly at times when the sheep were excluded from the in-bye land to allow for cropping.

[24] She also referred to Mrs Christine MacDonald’s letter to the Court in her capacity as clerk of the Common Grazing Committee in which she had advised that the shareholders had known the disputed area as the Gorge Park and that it was part of the common grazing. The shareholders made claims under agricultural subsidy schemes on it.

[25] Mrs MacLachlan’s sister, Patricia Lamont, had also written to the Court to the effect that she had always believed that the land shown on the application plan was part of the common grazings. A statement (Production 23) had also been lodged by Brian Strachan.

[26] Although Mrs MacLachlan was unsure as to the precise dates of construction of the West Highland Railway line, she thought it would have been around 1893 to 1895. With a view to maximizing the benefits brought by the railway, there had apparently been concern about completion of a shooting lodge on the estate. The then estate owner, Mackintosh of Mackintosh, had been a director of the West Highland Railway. However, she could find no records relating to the land being taken for the railway other than a reference to the estate’s agent being instructed to seek compensation. There was also a mention of timber being extracted in around 1890. At that time land at Murlaggan, Achluachrach and Inverroy had been held runrig and the estate had given the crofters larger areas, but she could find no mention of common grazings.

[27] Although Secretary of State v Kennedy (No.1) was an application for resumption, the status of certain parts of the Common Grazings, including the present application site, had been questioned. In summary, Mrs MacLachlan’s view was that the application, when properly analysed, led to the conclusion that the landlord at the time had considered – or at least accepted – that the Gorge Park was part of the common grazings.

[28] The areas which had ultimately been authorised to be resumed in the case did not include the Gorge Park. However, the inclusion in the application of the areas edged in blue had been a tactic by the landlord to entice the crofters to enter into dispute with him as to the status of those areas. One of the crofters who had lodged replies had been Mrs MacLachlan’s grandfather. When the Secretary of State had sought, by amendment, to include the areas edged in blue for resumption, one might have expected to see the documentation altered to show specific exclusion of any areas not intended to be covered. There had been no such exclusion. Use of the word “believed” by the landlord had been a way of excusing himself from an earlier mistake and giving him a basis for correcting it.

[29] The area sought to be resumed had changed by amendment from 149.20 acres at the outset to 258.80 acres, but the area finally authorised to be resumed had been quite different. Mrs MacLachlan had calculated the relevant areas and referred us to Production 26(d) in that regard. She had used a mapping device on the Forestry Commission’s website to arrive at her figures of 64.32 acres for the area edged in blue above the road, 9.93 acres for Woodend and the Gorge Park between the road and the railway and 7.17 acres between the railway and the river. It had proved a little more difficult to calculate the area adjacent to “B”, which she had done by triangulation – arriving at 27.41 acres.

[30] She had thus demonstrated that the Secretary of State’s intention had indeed been to include all the areas edged in blue in the resumption application and that had been the effect of the amendment. There had been nothing in the language used to suggest that any of those areas was not to be included. Eventually 557.1 acres in total, covering four separate areas, were resumed. The case illustrated that in 1959 the crofters thought that the areas edged in blue were all part of the grazings and were prepared to dispute their status with the Secretary of State. The matter had been settled by him accepting their argument.

[31] Since 1959 the area had continued to be used for sheep grazing as part of the common grazings. However, the Galmore Sheep Stock Club had carried out extensive fencing works on the hill and the sheep were now excluded from the disputed area. The intention was to keep them away from it.

[32] In 1974, the Secretary of State for Scotland had applied to resume a further area of common grazing – Secretary of State for Scotland v McIntosh. Mr Luxmoore had acquired land from the owners of Glenspean Lodge Hotel in order to build a shooting lodge. The purpose of the resumption was to enable Mr Luxmoore to acquire ground to facilitate access to the lodge. Discussions within Mrs MacLachlan’s family at that time had been to the effect that the particular plot had been chosen and purchased for the lodge because there was no other land in hand to the estate which could have been made available to the shooting tenant. If the Gorge Park had been available, it would have been common sense to have used it. In summary, her view was that the case demonstrated that the landlord of the time did not have land of the nature and location of Gorge Park ‘in hand’ at the time of the application.

[33] On 15 May 2008, the current landlord had written to Highland Council’s Planning Department. The letter had been headed “Woodend, Achluachrach, by Roy Bridge”. In that letter there was reference to a meeting with a planning officer to discuss a proposed planning application. The site concerned was the one involved in the present case – as could be seen on Production 28, which Mrs MacLachlan had obtaining following a Freedom of Information request. Prior to seeing the letter, she had only been aware that the landlord had an interest in developing the Gorge Park area, but not the detail.

[34] The landlord was not supportive of her application in respect of Woodend or Gorge Park. He had written to the applicant on 30 June 2008 expressing his view that the Gorge Park and an adjoining area were “within our ownership but not subject to common grazings and neither is it crofted”. When she had told the grazings clerk that, he had tried to have the situation clarified. In a letter to her of 22 September 2008, part of Production 29, the clerk had advised her that the landlord was wrong to state that those areas were not subject to common grazing. Thereafter, in a letter dated 18 November 2008 to the applicant, the clerk had indicated that he had discussed those sites with Mr Smith and had forwarded to him the relevant field identifier sheets which confirmed the subjects as part of the common grazing.

[35] Also in a letter to the clerk of 24 November 2009, Mr Smith had mentioned discussions about land at Woodend and suggestions which he had put forward in relation to it. He had said that the estate would “deal with access issues and services and enter into an agreement with the Sheep Stock Club in relation to future sales, subject to planning permission being secured”. Mr Smith had mentioned Woodend twice in discussions about common grazing, so he must have thought the land to be part of the grazing. “Woodend” had been used at times to describe the application site in this case – although that name often referred to an area to the east of the subjects. That view was further confirmed in a letter from the landlord to Mrs MacLachlan of 23 February 2012 (Production 11).

[36] There had been no other resumption applications in connection with any of the subjects involved in this case since the one in 1959.

[37] There were also other indicators of the land being common grazings. If one had regard to Production 1, there could be seen to be a “tongue” of land which allowed access from the main hill areas through the lower part of the grazings and onto the Gorge Park. It facilitated movement of sheep between the lower and upper parts of the grazing and appeared to have been negotiated by the crofters at the time of the resumption. Mrs MacLachlan’s aunt had been against the use of an area higher up for forestry, since it would have interfered with the gathering of the sheep for shearing. That part of the hill was used to gather sheep before they were sheared. Its exposure was such that there was a good updraught and the sheep were quickly dried for shearing if held there. The tongue of land also facilitated release and movement of the tups onto the hill from the Gorge Park. Although Mrs MacLachlan had no experience of the Gorge Park being used for holding tups, she had discussed the matter with John Toal, her cousin, who had been clerk from about 1985 to 1990, and he had referred to the area as the “tup park”.

[38] Under cross-examination, Mrs MacLachlan accepted that in view of the lack of fencing in the 1960s and 1970s, there was nothing to prevent movement of sheep from the main upper parts of the common grazing to lower areas – whether or not they were part of the common grazing.

[39] She had consulted with the relevant authorities in relation to her proposals for development and cited two meetings at Highland Council offices in Fort William as well as a site meeting with planning officers and an exchange of emails and letters. A planning officer had eventually given his views as to the likelihood of planning approval being forthcoming for various sites.

[40] She had also had an exchange of letters and a site meeting with the Highways Authority. They had initially been against all the sites, but eventually, following a meeting on the subjects, it had tentatively been agreed that support might be forthcoming if the existing access was closed off and another at Woodend opened up with a view to improving sight lines. There had also been an exchange of correspondence with Scottish Natural Heritage.

[41] In a letter to Mr Smith from the grazings clerk dated 16 November 2009 (Production 8), reference had been made to correspondence about a site “higher up the hill”. That did not indicate any inconsistency on her part because at that time she had still been looking at various options and the whole process had been a long drawn out one. She had simply been looking at other sites because of Mr Smith’s continued opposition to the sites suggested by her mother. At Achluachrach, the only possible site would have been further to the north. Another site had been investigated at Murlaggan.

[42] Mrs MacLachlan was referred to the correspondence in the autumn of 2008 between the then clerk to the grazings, Mr Smith and herself. She had assumed that, following discussions with the clerk, Mr Smith had accepted that the areas at Woodend and Gorge Park were common grazings and so had no problem with the proposed apportionment. The material received following her Freedom of Information request had been the first time she had had real knowledge of Mr Smith’s plans for the area. She accepted, however, that she had been aware that Mr Smith did not agree with the view that they were part of the grazings and had not known that, at the time, Mr Smith had been discussing other sites with the grazings clerk.

[43] All agricultural land was allocated a farm code. As far as the IACS system was concerned, it was an offence to enter on the forms, under a farm code number, ground which was not occupied by the person making the application. It did not matter whether the land was owner occupied, tenanted or common grazing, it would still have a farm code. But it was an offence to make a wrong declaration as to the status of the ground.

[44] In the 1959 Land Court application, she accepted that the landlord at the time had not included the Gorge Park area as being part of the common grazings in the original application, but stressed that there had been an amendment whereby the application came to include “adjoining” areas. The original planned resumption areas bore no relation to the land which was eventually resumed.

[45] In calculating the areas set out on Production 26(d), Mrs MacLachlan had used a Forestry Commission tool for most of it, but because there was no modern map for the graveyard area, she had scaled the map up and triangulated it. That was a common surveying practice which was used in her workplace office and was accurate. The area closest to “A” had been done by computer graphics and one needed to include all the blue areas to get to the total. In any event, the sum of all the areas she had measured was totally different to the area actually finally resumed.

[46] Referred to her statement about shareholders being unhappy about a proposal at the time of the 1974 application to the Court that part of the grazings be resumed for access to a house site, Mrs MacLachlan accepted that she had no evidence of any attempt to have the house sited elsewhere. She appeared to accept that Mr Luxmoore would have had a choice at the time. He had bought a plot from a neighbouring proprietor, but it seemed he did not have access to it other than over another proprietor’s ground. It was on a steep slope and would have involved excavation and inconvenience. The eventual outcome would have been dependent on the Court’s decision. If there had been an area close to the road, level, and available to the then landlord, it would have been a cheaper site to choose. Mrs MacLachlan accepted, however, that there was no evidence that Mr Luxmoore had been coerced into purchasing any particular site.

[47] The tongue of land to which she had referred lay between areas shown edged in blue on Production 1 to the north of the road. It was between two resumed areas. She had walked through that area herself. It was perfectly accessible and not too steep for sheep.

[48] Referred to Production 20, she thought that the lodge and keeper’s house would have been sited on the common grazings at one time. The lodge was shown on the 1872 map and also shown, but extended, on the 1903 map. It had been constructed in the 1860s, but had been damaged by fire, then rebuilt and extended. The lodge had been there in 1886, but the area would have been part of common grazings before it was built. She accepted the proposition that several areas of the original Glenspean Estate had not been subject to crofting tenure as at 1886 and that the lodge had been one of them.

[49] Mrs MacLachan was aware that there had been at one time a house at Woodend adjacent to the subject area. According to her family, that house had been built on common grazings. The footprint of a building was still there, but she did not know whether or not the house belonged to the estate.

[50] As to the admissibility of the statement from Miss MacInnes, Mrs MacLachlan had asked a lawyer to take a statement, but her aunt had not wished to be questioned by a stranger. The lawyer had advised Mrs MacLachlan as to the format of the statement. Her aunt was housebound and not able to attend a hearing. Mrs MacLachlan had asked the questions, but the words on the statement were those of her aunt. Mr MacLachlan had witnessed the statement. Her aunt tended to try and keep people right and told them when she thought they were wrong.

[51] Although Mr Smith did not agree with Miss MacInnes’ views, he had no objection to her statement being admitted.

[52] Maryann MacInnes (per her written statement, Production 22) had been born at 3 Achluachrach in 1933, her family having first come there in 1912, when her grandfather had taken over the tenancy of 3 Achluachrach, including a share in the Galmore Grazings. His wife was the daughter and granddaughter of two tenants in Murlaggan. Miss MacInnes’ own father had become tenant of 3 Achluachrach when his father had died in 1918. He had later given up the tenancy of the croft at the time of taking over the tenancy of 2 Achluachrach, but he had been allowed to keep the house at 3 Achluachrach.

[53] She had attended Roy Bridge school and St Margaret’s church. To reach Roy Bridge, she used to walk past Glenspean Lodge, the house at Woodend and through the Galmore Grazings on the road now called A86. The grazings boundary was at the gully on the Roy Bridge side of a sharp bend just past the Gorge. She described the area known as the Gorge as being that shown on a map attached to her statement [the map clearly identified the disputed subjects and the location of Woodend]. The common grazings included all of the land to the south of the road to the edge of the river, excluding the railway line.

[54] The house at Woodend had been built on common grazings and had burned down in January 1961. There had been houses on the railway line below the Gorge and when visiting them, Miss MacInnes’ family had walked across the park to get to them. Her sister and three brothers had all been tenants of the two family crofts. She had taken over the tenancy of 4 Achluachrach and its grazing share from her brother Donald in 1972; had become a member of the grazings committee; and had been grazings clerk for a period up to 1985. Recently she had assigned her croft tenancy to her nephew.

[55] Galmore had been a club farm in the past, but was now run as a sheep stock club by the shareholders. Her grandfather, father and brother had all been directly involved in the management of the sheep, with other family members helping out.

[56] She had never heard anyone claim that the Gorge was anything other than part of the grazing until now. It had been used as a tup park when she was young. At other times the gate was simply left open to allow ewes and lambs in to graze. The fence had been replaced when the road was widened. When the road had become busier, fences were erected to prevent sheep going onto the road. This had cut off the land at Woodend from the rest of the hill and although some ewes managed to get down to that part of the grazings they were getting fewer and fewer. The tups were now kept at Murlaggan when not out on the hill.

[57] Brian Alastair Strachan [A statement by him (Production 23) had been lodged prior to the hearing and was admitted] was 68 years of age and had lived in Roy Bridge area since 1969. He had come to the area in the early 1960s as a stalker and had worked for Tulloch and Glenspean Estates for fifteen years, leaving in 1984. He had acquired a new house in Bunlossit twenty six years ago. He continued to work as a stalker, but was now self-employed as a contract shepherd and dog breeder / trainer. Since 2008 he had acted as shepherd for the Galmore Sheep Stock Club. He had his own sheep as part of the job, but had no rights in Galmore grazings. He had been born and brought up on a farm and knew about sheep.

[58] Prior to his appointment as shepherd, there had been complaints about sheep straying into the Glenspean Lodge Hotel and an adjacent house. During his first year as shepherd, a number of lambs had been killed on the A86 close to the Gorge Park. At the time when he took over the flock, he had been aware of around twenty ewes which had lambed in the Gorge Park. There had also been sheep in the ground to the East – on the embankment next to the railway and around the hotel and Mr Dignan’s ground. They presented a danger on the main road. He had taken the decision to remove the ewes eight miles away to the hill. However, by the next day they were back into the Gorge Park area, having made their way through fences which were in poor condition to the north of the hotel. Eventually he had decided to have them permanently removed, so they were placed in a secure enclosure and sold.

[59] His view was that the Galmore sheep must have been grazing the subject land for some years before he had become shepherd for this form of hefting to have developed. To have been so hefted, they would have to have been born there. Some of them were eight or nine years old, but sheep would heft within a year or two. They were not specifically managed in such a way as to encourage them to stay in the Gorge Park area, but although semi-wild, they were Galmore sheep with the appropriate earmark. There had been a further thirty sheep similarly grazing an area further down the road.

[60] Ronald Hector MacIntosh was born near Loch Eil, but had left there at nine years of age and had since been in the Roy Bridge area. He had worked at Letterfinlay Farm Limited, Glen Lochay Estate and Glenfintaig Estate as estate manager for seventeen years. The estate had a total of 3700 sheep and 70 suckler cows. He has had two crofts with shares in the Galmore grazings – one at Achluachrach and one at Bohenie – for over forty years. He had been the shepherd for the Galmore club for six or eight years from about 2000. He had been involved on the grazings committee for the last thirty five years and was current chairman.

[61] As a schoolboy at Roy Bridge, when he had been at Monessie Farm, one of his jobs was to walk sheep back out of Roy Bridge, put them in the Gorge Park and shut the gate. The road had originally been a track, but around 1959 it had been widened to about twenty feet and it became dangerous for sheep to be on it. Sheep had definitely been hefted on areas like the Gorge Park in the past. The township fences had been in a poor state, but during the last ten years, considerable sums had been expended on fencing and as a consequence three pockets of good land were effectively excluded. However, with the advent of mobile handling facilities, it would be easy enough to keep sheep on them now.

[62] He could not prove that the Gorge Park was part of the grazings, but since his primary school days, it had always been regarded as a part of them. Before he had become shepherd, his brother had been shepherd for a year and then Ronnie Campbell before that. The subject ground had been at its most valuable when Mr MacIntosh had been at school in the late 1950s. When the road improvements had been started in 1959, none of the fencing had been stockproof. In effect, the sheep had a free range. But he did recall when the fences had been good and at the Gorge Park there had been a stile over the fence for access, via a path, to the railway cottages. The subjects had probably last been securely fenced in around 1956 – 58.

[63] The Gorge Park would be perfectly suitable for sheep now if it was properly fenced. It may be that it was presently partly wooded and full of bracken, but there were several places on the common grazings which needed to be developed in order to hold stock before a sale or for shearing. This was quite a valuable piece of ground for the sheep, but Mrs MacLachlan was entitled to her apportionment and this particular site was probably not as valuable to the club as some others.

[64] Mrs Christine Marjory MacDonald had been grazings clerk for last fifteen months and had been involved with farming for most of her life. Productions 24 & 25 were copies of maps supplied to the Club by Scottish Government Rural Payments and Inspections Directorate. It was accepted by shareholders at meetings of the club that these areas were part of the grazings. Claims in respect of Less Favoured Areas Support Scheme and Single Farm Payment had been made on the areas as grazing. Under reference to the photographs, Production 33, Mrs MacDonald accepted the proposition that the subjects were not fit for grazing and were not put to agricultural use, but was of the view that they “could be turned around”.

[65] Stephen Ashley Smith gave evidence that he and Alastair Bruce had purchased the estate from Edwin Luxmoore in 1996. They had renovated the house, Tom-na-Mhoine, which Mr Luxmoore had previously acquired from an adjoining landowner. Originally they had used a local stalker (Hugh McNally) in order to gain experience and knowledge of deer management and stalking. He had also assisted with management of the estate. Since his leaving, they had managed the estate, the deer culling, stalking and grouse shooting, etc. mostly themselves, but with some help from local self-employed people. Over the last seventeen years, they had become familiar with the estate through regular visits and stays. Prior to 1995 they had been guests of Mr Luxmoore. Although they had no knowledge of the estate prior to that, they had obtained information from Mr Luxmoore’s daughter, who was a party to the sale, and from Mr MacNally.

[66] Mr Smith had quite a lot of contact with the grazings’ shareholders personally and through the clerk, so had a reasonable knowledge of the crofting tenancies. He had passed the subject land regularly and was familiar with its condition and use since the time of purchasing the estate. During that time, he had seen sheep primarily in the hotel grounds, but also on the subject land, on neighbour’s ground, on the bunkhouse area, on land down towards the river and on their own in-hand ground. Sheep had roamed freely until relatively recently because the fencing had been in very poor condition. The subject ground itself had never been properly fenced. It had been used by campers and for fly-tipping, but it had not been used or managed for grazing during his ownership or, it would appear, for some time before that.

[67] Since acquiring the estate, he had looked at various areas for improvement, investment and development. In around 2008 he had approached Highland Council about the subject area with a view to its potential for development. He had always maintained that it was not under crofting tenancy – either as croft land or as common grazing. Parts of the estate had historically not been subject to crofting. Examples were the lodge, adjacent stables and kennels and the house at Woodend to the east of the subjects. Woodend was not part of the subjects and not in use or tenancy under crofting. The 1872 plan, Production 30, showed the location of the house at Woodend and the remnants of the house could still be seen. Access to the house was now blocked off by the road barriers.

[68] When the road was widened and the barriers put up, if the land at Woodend had been common grazings, then access would have been required. At that time, the house there had only recently burned down. But there was already access to the house from the subject area. It would have been illogical to allow barriers to be put up unless the landlord knew he was able to take access by another route over his own land. Access to the application site was presently at the west end of the subjects, but it could have been taken at any point. It was accepted that a crossing of the burn would have to be constructed to gain access to Woodend, but that would not be a significant cost – it would be less than the value of the house site. However, he was unaware of any mention in the titles to the estate of land taken for road widening or compensation in relation to that.

[69] To the proposition that the barriers on the roadside at Woodend had been erected in the late 1970s or 1980s, he did not know when they had been put there. If it was the case that the barriers were not put in at the time of the road widening, then the matter of access to Woodend would not have arisen at that time in any case. The fact was that the owner still had access from adjoining land.

[70] He thought the railway had been built in 1893 to 1895 and that it had split the subject land from the area to the south. It was shown on the 1903 plan, Production 31, but not on the 1872 plan. There was no evidence of any transactions or negotiations between the then owners or landlords and any other party, which might have tended to suggest third party interests. That pointed to the landlord having absolute title with no grazing leases to worry about. There was no indication that adjustments had been made to leases. There was no evidence of any discussions with a third party and therefore it could be assumed that there was no need for the landlord to engage with anyone else. If there had been third party involvement, then he accepted that a prudent landlord would have adjusted the terms of any leases.

[71] He also accepted that although there was no evidence of discussion with, or compensation to, any third party in connection with the acquisition of the railway line, that did not necessarily mean that there had not been such adjustment to leases or that compensation had not been paid. It all depended on the terms of occupancy at the time.

[72] He was well aware of the history of sheep grazing on the area, but sheep had roamed freely on the subject land and the wider area around it for some time. Such grazing of the subject land had been acknowledged, but it was not accepted that it was on the basis that the land was subject to common grazing rights. Nothing that he had heard to date would contradict that view.

[73] When the road had been widened in the late 1950s, the highway authority would have needed to negotiate the acquisition of additional land and, if there had been grazing rights, it might be expected that there would have been a resumption application. The fact that there was no evidence of that suggested that the land was not subject to grazing rights at the time. He was not aware of any mention of the road widening in the estate’s title deeds.

[74] Referring to Production 26, the 1959 Land Court case, the penultimate paragraph in the Statement of Facts made it clear that the areas outlined in blue on the plans accompanying the application were felled woodland and not part of the common grazings. The application would have been based on historic evidence at the time. It was also clear from the Ordnance Survey maps, Productions 30, 31 and 32, that the ground had been woodland when compared to the open hills at the north. In the replies for the then landlord to answers from the respondents, it was admitted that all the areas outlined in blue on the application had been grazed by tenants of the townships, but as licencees, not tenants. As there had been poor fences, there would have been sheep on the land whether it was common grazing or not.

[75] The Secretary of State was then progressing a resumption application for forestry on ground owned by the state. Although some areas were not considered to be subject to common grazing rights, the intention was to plant them. He eventually decided not to dispute the crofters’ position that the areas edged in blue were part of the common grazing. He would have been aware that they were being grazed in any event. He therefore asked that the blue areas adjoining “A” & “B” on the application plan be added to the area sought to be resumed. He did not concede that the areas south of the road were in fact part of the common grazings. The landlord then made further changes and the ultimate resumption was of areas north of the road and quite different to those in the original application. At no time did the Secretary of State give up his claim that the subjects and other areas shown in the application plan were in hand and not part of the common grazings.

[76] The subjects of the present application had not been under any control or management for some considerable time, but had simply become part of a wider area being grazed by club sheep. Mr Smith understood that a fence had been put up when the road was widened but there was no evidence that it had ever been maintained or repaired. It had become dilapidated and dysfunctional such that the area had been effectively left open to the hill. There was no evidence to contradict his view that the subjects and the adjacent land with the derelict house at Woodend were not subject to crofting tenure.

[77] None of the areas edged in blue on the original plan submitted with the 1959 case were part of the grazing. In relation to Woodend, he accepted the possibility that houses could be built on common grazings. If a house was built on common grazing with the crofters’ permission, then that would not change the status of the land. Although he had no relevant documentary evidence, his position was that it had not been common grazings in 1886 and nothing since then had brought about a change.

[78] He could not explain why the landlord in the 1959 application had added the areas edged in blue, which were said to be felled woodland, to the application. It may just have been because he wanted to get on with the forestry project. It may have been the correct commercial decision to concede in the circumstances. It may well have been the case that he wished to plant those areas and that they were not included in the resumption application originally because it was not thought they were subject to crofting tenure.

[79] The resumption application was only part of a very much larger forestry project. Planting was being delayed and it would not have been a material issue to accept the blue areas as being subject to crofting tenure for the sake of getting the whole project under way. In any event, parties could always agree matters if they wished to – whether within a court procedure or otherwise. Woodend had been included as part of the area edged in blue in the original application plan in 1959 along with the other areas edged in blue.

Closing submissions

Applicant

[80] Mrs MacLachlan submitted that common grazings could be established by the three criteria or conditions – custom, prescription or grant – in terms of Lord Sorn’s comments in Ross v Graesser.

[81] She hoped that the Court would find that the evidence she had presented demonstrated a long period of use of the subject area as part of the common grazings. Evidence from other shareholders showed that it has been so used and they maintained the view that it was part of the grazings. In other words there had been a long custom of use.

[82] It was also submitted that positive prescription would apply to the situation, because there had been overt use of the land without hindrance or objection for a long period. There was also evidence of grant.

[83] It had been clearly shown that the ground had been used for rearing sheep and that they were hefted on it. That was the case despite the suggestion that this had only come about through roaming. Ewes would not move from their home territory or the area where they were born. If taken away to Murlaggan for shearing, dipping or tagging, they would simply return to the application subjects by various routes. She stressed that use of the ground by the shareholders had been shown to be for a long period, as least as far back as the 1930s, which was still in living memory as far as Galmore shareholders were concerned.

[84] The Court should look very carefully at the 1959 resumption case. The landlord had added all of the ground edged in blue to his resumption application. This was ground adjoining – adjacent to – the areas initially sought to be resumed. In his answers he had said that he “believed” that the land was felled woodland and in hand, but then accepted arguments by the crofters that the areas were part of the grazing. This court should not now move matters from that position which had been adopted by the landlord of the time. She was entitled to rely on it now. One also had to look at the actions of the landlords since the time of that case. There had been no attempt to ask crofters to remove their sheep. Grazing had continued. But it had only been the actions of the crofters themselves who, for safety reasons, had chosen to remove the sheep more recently.

[85] It was also important to note that although former afforested areas were eventually included as part of the common grazings for the purpose of the application, a tongue of similar land had been reserved from that former afforested area so as to allow access to the hill land above.

[86] Referring to Macdonald v Prentice’s Trustees, at page 68, it could be seen that common grazings rights could not be lost through lack of use or neglect. In the absence of apportionment or resumption, land couldn’t simply cease to be common grazings. Even though it may be accepted here that the land had not in fact been used in recent times by the shareholders, that did not affect its status in crofting terms.

[87] In summary, Mrs MacLachlan’s position was that the ground was common grazings in 1886. However, even if that was not the case, it had since become so by virtue of custom and use. The landlord had accepted it as such in 1959. In the period of over fifty years since then, none of the three intervening landlords had challenged the position until now.

Respondent

[88] Mr Smith submitted that there was simply no evidence of the area being part of the common grazings prior to or at 1886, nor of anything changing since then. There had been two major infrastructure schemes, namely the construction of the railway and the realignment and widening of the road, yet there was no evidence of any third party involvement in connection with any compensation which might have been awarded. It could be assumed therefore that the only parties with an interest in the contract were the land owner and the railway / highway authorities.

[89] It had not been shown that the landlord in 1959 had included the land to the south of the public road in his resumption application. It was not likely that he would have done so. There was no evidence of any discrepancy as suggested by Mrs MacLachlan. In any event, whatever areas delineated in blue the landlord included, they were included as a concession – on the basis of a commercial decision in order that he could get on with his plans.

[90] Through lack of proper fencing, sheep had roamed freely and the subject ground was not actively managed. The subjects and other land in the area were grazed by sheep whether or not they happened to be part of the common grazings. The landlords would have had no particular reason to object to the straying of sheep onto the subject land. There was no evidence that the landlords’ position in relation to the subjects had changed over time.

[91] Mrs MacLachlan had not established custom or prescription. It was simply the case that successive landlords had not intervened in, or objected to, the shareholders allowing their sheep to graze the subjects because no situation had presented itself which would have required him to do so. The 1993 Act was quite clear to the effect that for Mrs MacLachlan to succeed, it would have to be shown that the land was subject to crofting tenure at the time of the passing of the 1886 Act. The application should accordingly be refused.

Inspection

[92] We inspected the subjects on 23 October 2013, the day before the hearing. A further inspection was undertaken on 25 October when we also looked at some surrounding areas which had been discussed at the hearing. It is unnecessary to set out the detail of our inspections. Where anything we saw has influenced our decision, then that is made clear in the discussion which follows.

Discussion Overview

[93] It is not disputed that the various respondents in this case now have statutory rights under and in terms of the 1993 Act to share in the Galmore Common Grazings. They are regulated in terms of the “Regulations for the Management and Use of Galmore Common Grazings and Sheep Stock Club” which were given under the seal of the then Crofters Commission on 21 October 1998. According to said Regulations, they extend to “2,810 hectares or thereby”. Nor is it disputed that whatever their original extent, the grazings became subject to crofting tenure in 1886. What we are to decide is whether the area of ground, extending to approximately 2.0 hectares (4.9 acres) and shown on Production 1, forms a part of that grazing.

[94] It is reasonably clear that Mrs MacLachlan’s case is founded on two key propositions. Firstly that the disputed area (“the Gorge Park” or “the subjects”) was part of the common grazings when crofting legislation was first introduced in 1886. And, secondly, if the subjects were not a part of the grazings at that time, then they became so at some time thereafter.

[95] Were she to succeed on the first proposition, then we think that would be an end of the matter. That is because we are satisfied that some formal process would have been necessary in order to take the land out of the purview of the crofting legislation and there is no evidence of any such process or procedure having taken place at any time between 1886 and the present day.

[96] As will be seen, we have not reached a concluded view as to the status of the subjects as at 1886. Accordingly it has been necessary to consider in some detail the basis upon which the subjects could have come to be added to the grazings since then.

[97] Although there is an element of overlap in our consideration of the facts and law germane to each proposition, we essentially deal with them separately below. Eliciting a clear answer to either of the questions has not proved straightforward.

Evidence Generally

[98] Before undertaking a detailed analysis, we look at some general aspects of it in the context of this case.

Hearsay

[99] Much of the evidence upon which we have come to rely is hearsay. Quite apart from the weight which falls to be attached to it in reaching decisions as to fact, there can be confusion as to what is meant by that term. Two earlier cases illustrate some of the issues involved.

[100] In Macdonald v MacNab (No. 1), the Full Court discussed hearsay evidence and, at page 140, said:- “There is no doubt, however, that in the context of discussion of evidence, evidence of oral tradition is properly described as “hearsay”. This is not necessarily a perjorative term … hearsay evidence cannot be tested by cross-examination and care is necessary in assessing it …it is clear that hearsay evidence is not simply to be considered “in absence of better evidence”. The Court is obliged to consider relevant hearsay evidence and to assess it as part of the evidence in the case. If “better” evidence exists then it might completely outweigh the hearsay. “Hearsay evidence will always require special care but the fact that it is hearsay does not automatically allow it to be treated as of little weight”.

[101] In relation to historical material, the question of admissibility of hearsay evidence was addressed in Paterson v National Trust. At page 61, the Court said:- “As in most cases involving the history of crofts, hearsay evidence must be admitted since, in the absence of written records and owing to the deaths of crofters of older generations, it is the only evidence available. But it is for us to determine the value of such evidence and the weight to be attached to it, bearing in mind the impossibility of cross-examining the crofters who were directly concerned in the events spoken to and all the possibilities of distortion, inaccuracy and mistake to which oral tradition is prone”.

[102] We have quoted the above passages for the assistance of parties, but also to remind ourselves of the care we are obliged to take in assessing the evidence in the present case.

Quality and weight

[103] We think that Mrs MacLachlan’s evidence can be placed into three categories – (i) her own knowledge of the area, based on what she has seen and experienced in her lifetime; (ii) evidence, mostly hearsay, from various members of her family over the years, some of which is hearsay in itself; and (iii) evidence in the form of various documents lodged by and spoken to by her.

[104] Mrs MacLachlan’s family has had a long association with the area; that is not disputed. That association has been directly with Achluachrach and the Galmore Grazings and with crofting there for over one hundred years. She, herself, has some limited experience of actual day to day crofting practices and other comings and goings taking place in the area extending back to around 1960. Virtually none of her evidence as regards her personal recollections was challenged and we have no reason to doubt it. Insofar as it is relevant to our decision we accept it.

[105] Although she has been the crofter at 5 Achluachrach for over six years and has been on the Galmore Grazings Committee for four years, her own knowledge is really only of value for present purposes where it relates to what she recalls of her childhood and early adulthood. That is so because, as will be seen, we do not consider that proof of activities or events of recent times greatly assists us with our decision. That said, we would wish to be satisfied that the physical state of the subjects in her early years and thereafter was consistent with any evidence of its earlier history.

[106] Likewise, the evidence of the other witnesses who appeared for Mrs MacLachlan, as expressed either directly or implicitly and insofar as it relates to their personal knowledge and experience, is not of great assistance to us. We think that because it seems to us that their conviction as to the status of the subjects is almost entirely based on views passed on to them by their predecessors and not on any personal experiences, research they have carried out themselves or documents which they have studied. There is nothing wrong with that and we express no criticism whatsoever in that regard, but evidentially the knowledge and understanding of their predecessors is of much more value to us than their own. As we outlined earlier, hearsay evidence is perfectly admissible in this court, but care must be taken when deciding the weight to be attached to it. Much depends on what other evidence is available.

[107] Had Miss MacInnes’ evidence been given orally in court and subject to testing, we would have had more confidence in it. It could have enabled us to glean a better understanding of the basis of her personal experiences and the relevant background to the material passed on to her from her family. In short, it might have assisted us in amplifying the detail of what took place on the ground in the early 1900s and during her lifetime thereafter. Although the lack of testing as to the foundation of her view that the occupancy of the subjects was as part of the grazings detracts from what we can take from her evidence, we have come to the view that it is largely consistent with other elements of evidence and broadly speaking we accept it.

[108] Mr Smith presented very little positive evidence, but rather sought to undermine that of Mrs MacLachlan or to draw different conclusions as to the import of her evidence. He was of course entitled to do so. Given his admitted lack of knowledge of the relevant history, we consider that it was a proper approach for him to take. As will be seen, there were several elements of his analysis which we have accepted and several of Mrs MacLachlan’s which we have not.

[109] We heard a little about Mr Smith’s proposal for development. This line of evidence appeared to be directed at showing inconsistency in his position as regards the status of the subjects. It is not obvious from the documentary material which was put before us that there was any such inconsistency. However, we do not consider this line of enquiry to be relevant to our deliberations. It has not impacted on our assessment of Mr Smith as a witness. His personal knowledge as to the status of the land at the relevant time was quite limited. By his own admission, that knowledge has largely been furnished by communication with the grazings clerks and other shareholders. Even if he had been led to believe that the subjects were under crofting tenure – and we do not think that is proven – it is clear that he no longer holds that view.

[110] In short, we do not think Mr Smith has sought to claim that he is well informed as to the crofting status of every part of the land which he now owns. Even if it had been proven that he had changed his view between 2008 and the present day, there would not have been any change in the outcome of this application. It appears to us that he has made some effort to foster good relations with successive grazings clerks and we would not be surprised to find that there might have been some degree of compromise over some issues.

[111] Where relevant parole evidence is available as to any factual matter, it is normally the case that considerably less weight falls to be attached to the hearsay evidence. The weight to be attached to documentary evidence which cannot be spoken to by those involved in its creation or subject matter also needs careful consideration. In this case, we have endeavoured to take extreme care in analysis of evidence of earlier events where that evidence has been crucial to our reaching a view as to why those events came about or why a series of events took the route they did. Both parties had a tendency to read more into the evidence than they were entitled to do. Our analysis has not been without its difficulties, but we hope that we have taken no more from the evidence than can be justified.

[112] We had little difficulty in assessing the evidence of the witnesses who appeared before us insofar as their own memories of events which they actually experienced were concerned. Indeed we do not take issue with the reliability and credibility of any of the witnesses as to what they have seen or done – or even heard from others. But, as will be seen, evidence of events in their own lifetime relates to a period which has been of limited assistance to us in deciding this case.

Historical Evidence

[113] Although Mrs MacLachlan had clearly undertaken a great deal of historical research – and we commend her for that – much of it has not proved to be of direct relevance to the main issues. It has become increasingly difficult to procure good evidence of fact relating to the late 19th and early 20th century which is so often the key to a sound outcome in cases such as this one. We were a little surprised that neither party was able to procure and lodge copies of any other earlier relevant documentation which might have been of assistance to us.

[114] In other cases, original ‘County Series’ Ordnance Survey maps together with other material based on them have proved useful. The same is true, for instance, of the records and maps contained in the 1910-1915 Inland Revenue (Scotland) Survey of Land Value and Ownership and the Report of the Royal Commission (Highlands and Islands) of 1892. On occasion Crofters Commission records and Valuation Rolls have been useful.

[115] In this particular case, it is surprising that no relevant land transaction documentation could be located which might have assisted us in the matter of the occupancy of the subjects in earlier times. It seems unlikely that there are no publicly held records of the maps, plans and other documents drawn up either in relation to the purchase of land for the railway or in relation to land engineering aspects of its construction.

[116] The Court, of course, recognises that undertaking research can be extremely time consuming and is likely to entail expense. Whether that time and expense is warranted has to be a matter for parties and is of course related to the importance attached to the outcome.

Legal Basis

[117] Mrs MacLachlan’s application was brought under section 53(1)(d) of the 1993 Act, which is in the following terms:-

“Without prejudice to any jurisdiction exercisable by it under any enactment, the Land Court shall have power to determine, either on the application of a person having an interest or on a reference made to it by the Commission, any question of fact or law arising under this Act, including without prejudice to said generality … (d) the question whether any land is or forms part of a common pasture or grazing to which this Act applies”.

[118] Accordingly there is no question as to our jurisdiction.

[119] Although parties made reference to some authorities which were considered to be relevant to our deliberations, we have found it necessary to look quite closely at the terms of the historic statutory framework applicable over the years, commencing with the 1886 Act and also at some other authorities. The need for such analysis will become obvious and our observations are largely set out in two tranches under the heads of the two questions which we seek to answer.

Status as at 1886

Statutory position

[120] We consider firstly what the prerequisites were for land, including land over which grazing rights might be exercised, to become subject to crofting status. What character did land need to have in order to fall under the purview of the 1886 Act?

[121] The 1886 Act gave certain classes of existing yearly tenants security of tenure. Their holdings became established as crofts and the tenants themselves as crofters. It defined “holding” as meaning “any piece of land held by a crofter, consisting of arable or pasture land, or of land partly arable and partly pasture, and which has been occupied and used as arable and pasture land (whether such pasture is held by the crofter alone, or in common with others) immediately preceding the passing of this Act…”. And “crofter” was defined as meaning “any person who at the passing of this Act is tenant of a holding from year to year, who resides on the holding, the annual rent of which does not exceed thirty pounds in money, and which is situated in a crofting parish…”.

[122] Although there was no statutory definition of common grazing – and indeed there has been none since – it has always been implicit that a holding was deemed to include rights of grazing held in common as part of the tenancy of that holding. Section 12, which deals with enlargement under section 11, specifically acknowledges that crofters might “participate in common pasture” or have “rights of pasturage common as among themselves”. Accordingly, the 1886 Act had the effect of conferring crofting status upon land over which the crofters had pertinential rights of grazing in common at that time as part of their lease. Plainly the nature of the rights in the croft land itself are not the same as the rights over the common grazing land, but there has never been any doubt that the crofting “label” attached to the land itself at that time.

[123] If confirmation were needed that the intention was to include common grazings in the scheme of the crofting legislation, specific provision was made in the 1891 Act for statutory control of the management of such grazings.

[124] We note that Agnew says, at page 8, that land which was not arable or pasture when a holding became subject to the Acts would not be part of the croft. We are of the view that this also broadly applies to common grazing. That said, we are aware of cases in which croft and common grazings land became subject to the 1886 Act when, at the time, said land supported scrub woodland and / or isolated single or groups of mature trees, the understorey of which was essentially pasture – either grazed or capable of being grazed. The question as to whether land with such tree or scrub cover fell under the ambit of the 1886 Act will always, we think, be a matter of degree.

[125] But where land was clearly populated by, and the cover dominated by, either deciduous or conifer woodland / scrub (whether that woodland had been established formally or through natural regeneration) we think there is a presumption that it would not have been apt to be defined as pasture and would not normally, therefore, have become part of a croft or of land over which crofters had rights of common grazing as at 1886.

[126] Board of Agriculture for Scotland v Macdonald is an early case in which the Land Court gave a view as to what fell to be regarded as woodland as opposed to pasture. Although it was about creation of new holdings, there was an issue as to what constituted woodland for the purposes of interpretation of the legislation. A landowner had objected to the competency of the application and one basis for the objection was that the land in the scheme was woodland within the meaning of section 26(3)g) of the 1911 Act. He argued that about 100 acres out of 213 acres marked as common pasture in the proposed scheme was woodland.

[127] The Court said that woodland was not to be seen as confined to land utilised for ornamental trees such as is grown in policies or parks of pleasure grounds of a mansion house or residence. On the other hand nor did it include every piece of ground on which trees happened to grow. In the Act, “woodland” fell to be given its ordinary meaning – namely land which is appropriated or principally used for growing timber, although it might incidentally or occasionally be used for pasture. It was land which was reserved, replanted at regular intervals and protected for that purpose. On the land in question, there was considerable growth, chiefly of natural birch on very large tracts of it, which the Court said was the case on most pastoral farms on the mainland of the Highlands.

Ordnance Survey Maps : Productions 30 and 31

[128] In this case, we have placed some reliance on the Inverness-shire Sheet CXLI Ordnance Survey maps at a scale of 1:10,560, extracts from which were lodged by us as Productions 30 and 31. Both cover the subjects and surrounding areas, the first based on a survey carried out in 1870 and the second on a further survey of 1899.

[129] Whilst caution must be exercised in interpreting such maps, particularly at a scale of 1:10,560, it is reasonable to assume that care was taken in their compilation and that they accurately record what was seen on the ground at the time of the survey. That, of course, cannot now be directly tested. That said, our experience is that, even at such a large scale, the description of the ground as shown by map symbols and bounding features is usually consistent with other evidence and as such is normally reliable.

[130] In 1870, the cartographers have recorded the subjects as comprising in part an area of open rough pasture next to the road with the remainder deciduous woodland / osier scrub, which appears simply to be part of the rest of the wooded area extending down to the river. The land immediately to both the north (above the public road) is similarly recorded as being deciduous woodland and osier. The subjects today are said to extend to approximately 2.0 hectares (4.9 acres) and we simply note that, on the basis of our own estimates, the area recorded in 1870 (and similarly shown in 1899) as rough pasture within the subjects extends to about 0.4 hectares (1.0 acres) – about one fifth of the total area of them.

[131] There are no other areas close-by which are recorded as rough pasture, apart from the extensive open areas to the north of Coille Dharaich wood and also the area, north of the road and to the east of the wood towards Glenspean Lodge. At that time, there is no apparent bounding feature between woodland and rough pasture other than a dyke or fence running from the river at a point to the east of the subjects, generally in a northerly direction, along the east side of Coille Dharaich wood and then north and north west through the rough pasture to the River Roy. Given that there appears to be no relevant bounding feature running in a generally easterly / westerly direction, the implication is that there was freedom of movement of stock from the open hill ground right down to the banks of the River Spean.

[132] It is clear that the area of the subjects and that to the north and south of them has been extensively resurveyed for the later map. The major change is that the railway line and associated embankments and fencing are shown. On the earlier map, it could be said that the demise of the subjects was effectively indistinguishable as to the south and west boundary of them. Taking account of the ‘new’ fence for the railway, the extant public road, which appears as though it may have been fenced, and the existing gully between the subjects and Woodend, the later map effectively delineates the subjects in such a way that they take on the appearance of a separate area – perhaps short of an enclosure, but certainly recognisable when compared with the plan of them lodged as Production 1.

[133] Albeit that the building of the railway created a split of the whole area between the road and the river, there does not appear to have been any change in the nature of the ground cover within the subjects. Nor is there any apparent change in ground cover on the area between the railway and the river or the area to the north of the subjects, above the public road. As outlined above, by virtue of the fencing of the north of the railway line, the subjects become more recognisable as a physical entity, but other than the appearance of a track down to buildings at the railway line, there has apparently been no other discernible change on the ground within the subjects.

[134] However, further afield, two distinct changes seem to have come about. Firstly, it is plain that a physical bounding feature – presumably a fence – has appeared so as to separate the rough grazing to the north from the Coille Dharaich wood to the south. Secondly that fence continues to the east, enclosing an area of what was formerly rough pasture lying between Coille Dharaich wood and Glenspean Lodge, together with an area to the east of the Lodge and Cnoc an Eas. The whole of that apparently newly enclosed area of what was formerly rough pasture is shown as coniferous woodland. The ‘new’ coniferous woodland extends to an area at the south of the road and south west of the Lodge, said area having been previously also recorded as rough pasture.

[135] We have also noted that the fence which previously marked the eastern edge of Coille Dharaich wood no longer apparently exists by 1899; indeed nor does a significant section of the remainder of it to the north. However, a new fence has appeared which runs from a point in the new north fence of the wood in a northerly direction past the west side of Meall Doire to meet the remnant of the fence which terminates at the River Roy. We observe that this new fence appears to follow part of the present day western boundary of the grazings as shown on Productions 1 and 2.

[136] For completeness, we have also looked at the 1959 edition of the two earlier ‘County Series’ maps. It is recorded as being a version of the 1903 edition revised for “major corrections”, but there is nothing by way of relevant discernible change in any of the areas with which we are concerned. That does not mean that there have been no changes. The 1968 ‘National Grid’ map at 1:2500 (Production 32) was surveyed in October 1966 and it can simply be noted at this stage that the subjects, and indeed the ground to the north of the public road and south of the railway line appear to be designated as supporting non coniferous trees and bracken. We doubt, however, if they could properly be described as woodland at that time.

1886 status : Discussion

[137] Were the subjects part of the Galmore grazing when the holdings and grazings first became subject to the 1886 Act?

[138] Mr Smith’s submission that the crofters occupied the Gorge Park under some form of licence or simply through the landlord’s tolerance was directed at showing that the use was not based on crofting tenure at all. However, if the subjects were or are subject to some form of tenure, no proper basis has been advanced to the effect that they have ever been held by the crofters as anything other than part of the land of the Galmore Common Grazing over which they have grazing rights. In crofting terms, no one suggested that they might have been created as a separate common grazing or some other crofting right.

[139] It would seem that no authoritative map or other clear documentary description of the extent and boundaries of the original grazings exists. Although there is evidence of some approximate total acreages for the whole grazing in the early days, there is nothing by way of specific reference to the boundaries or extent of them in any documentation which has been put before us which is conclusive of the matter.

[140] Whatever their physical extent at the time, we are satisfied that the grazings became a crofters common grazing as at the coming into force of the 1886 Act on 25 June 1886. Whilst Mrs MacLachlan’s evidence of the period prior to 1886 was partly directed at establishing the involvement of her forebears in the working of land in the Glenspean area, it was also, perhaps unnecessarily, directed at showing how the grazings came to be established originally. We accept – and indeed it is not disputed – that when the tenants of holdings in the area became crofters, amongst the rights which they acquired in 1886 as pertinents of their statutory croft holdings was the right to share in the Galmore Common Grazing.

[141] Had it been necessary for us to establish that positively, then clearly Mrs MacLachlan’s evidence in that regard would have been helpful. The historical background which she set out would have given rise to a strong presumption that the common pasture existed in association with tenancies prior to 1886 and that it therefore became a part of the associated statutory crofting tenancies in that year.

[142] So we accept that there was a crofters common grazing known as “Galmore Common Grazing” which became subject to the 1886 Act. Broadly speaking it covered the land to the north of the public road over which there is no present dispute. Our first task is to consider whether the subjects were an integral part of that common grazings area at that time.

[143] Our analysis of the early Ordnance Survey maps is strongly suggestive of the area being woodland then. We will deal more fully with the 1959 forestry resumption case later, but there is no evidence before us which might counter the averment of the crofter respondents in that case to the effect that by 1880 the areas edged in blue on the application plan, which include the subjects, were already being grazed. We accept that as a possibility and indeed we are aware that it was not uncommon for livestock to have access to mature woodland.

[144] Indeed the 1872 map would suggest that all the woodland areas were open to the wider areas of rough pasture to the north of them in 1870. Accordingly it is likely that stock would be able to move through them, graze any understorey and shelter within them and take access to the land south of the road. But that does not necessarily mean that the woodland was any part of the tenancies or club farm at that time – even if access was tolerated or positively allowed.

[145] Further it would seem from the later map that, by 1899, the landowner had decided to undertake some positive forestry management: appearance of strategically placed fencing and further planting. Of course the mere erection of fences or other stock-proof barriers does not of itself change the status of the land. Fences are normally intended for containment or exclusion of livestock. But we think it unlikely that the fences around the woodland would have been erected in connection with grazing management. On balance of probabilities, we think they would have been erected to keep stock out of the woodland to facilitate forest management. That is inconsistent with their use as part of a croft or of a common grazings.

[146] We noted earlier the apparent existence of a small area of rough pasture within the subjects both in 1872 and again in 1899. That might be thought to be suggestive of some form of deliberate or managed grazing taking place. At our inspection, we observed that an area broadly similar in size and location was largely populated by dense bracken. We are aware that bracken often grows on quite productive ground. It would not therefore have been surprising if the area had been deliberately or otherwise grazed more intensively than the surrounding areas. That of itself would have aided suppression of scrub growth and encouraged a ground flora of grasses and other herbage.

[147] It seems to us that for some time prior to 1870 until at least 1899, whilst there was that small area of open rough pasture within the subjects, the majority of the ground cover was in the form of deciduous trees and willow or other scrub woodland. It can also be noted that prior to the building of the railway line, there does not appear to have been any significant difference between the nature of the tree cover on the subjects and that of the ground to the south – or indeed of the land to the north of the road, although we are well aware that the physical topography is different.

[148] If the woodland shown on the map, Production 30, had not still been shown on Production 31, then our assessment may have taken a different course. But the later map continued to show all the subjects and all the areas immediately surrounding them as essentially comprising deciduous woodland and osier. Given the significant number of changes made to the later map when compared with the earlier one – for instance the addition of the conifer plantation between Coille Dharaich and Glenspean Lodge; the addition of a bounding feature to the north of Coille Dharaich; the addition of the railway and associated features; and the path through the subjects – we think it most unlikely that the surveyor would have continued to record the subjects and the areas surrounding them (in effect the areas edged in blue on the 1959 resumption application) as woodland if they were not, at the relevant time, either established woodland or at least recently planted woodland.

[149] We are unsure what the practice of the Ordnance Survey surveyors was in respect of land comprising felled woodland whose future use was not known. However what seems clear to us is that no matter the state of the woodland at Coille Dharaich, a new conifer plantation had been established to the east at some time between 1870 and 1899. That too was part of the area edged in blue in the 1959 application. We think it most unlikely that said conifer woodland could have been part of the grazing at the time of the 1899 survey.

[150] Formulating an image of what the ground might look like in practice from a map in the absence of any other supporting evidence often leads to unreliable or misleading conclusions. Mrs MacLachlan described the Gorge Park as having the appearance of an open field in 1960. Having inspected the subjects, our impression is that on the basis of the 1872 and 1899 maps, it would take a fair amount of imagination to conclude that they would have been capable of description as “an open field” at that time. We think that is so despite the apparent presence of fencing to the north and south of the subjects on the latter map. It is possible that the area depicted as rough pasture might have met the description, but it is unlikely that, taking the subjects as a whole, they could be so described. We shall look at subsequent change in our consideration of the second question.

[151] What is clear enough from the old maps is that the area within and around the subjects generally does seem to have been largely dominated by trees at that time. None of the other evidence we have heard is inconsistent with that. In the forestry resumption application, trees were said to have been planted for grandeur. Precisely what type of trees and at what density that might have entailed was not explored before us, but there was no suggestion that the planting was low density and specifically designed and managed to facilitate grazing of livestock.

[152] If a substantial cover of trees and dense scrub were removed and no re-planting took place, then the very presence of grazing livestock – particularly cattle – would tend to ‘convert’ the land into pasture. It can be noted therefore that the state of the ground from the late 1930s onwards – of which we do have some evidence and will consider later – offers no real guide as to its state as in 1886.

[153] Miss MacInnes’ evidence that all the land to the south of the road and down to the river was grazings is presumably based on what her family had told her. Whilst Mrs MacLachlan appeared to interpret that evidence as implying that the Gorge Park, Woodend, the area now occupied by the railway line and to the south of it were part of the grazing in 1886, that is not exactly what is said. In any event, we do not consider that evidence has weight sufficient to displace our view that the subjects and the land below the railway was almost exclusively woodland at 1886 and accordingly were not apt to have become subject to crofting tenure at that time.

[154] On the basis of the early map, we think that, prior to the construction of the railway, the land both above the subjects and below them would all have been essentially of the same character, although we know from inspection that the topography varies. The mere construction of the railway, per se, would have been unlikely to change the status of the land either side of it. It can be assumed that the land required for the railway was simply removed and that the effect was to sever the remainder into two parts. There is no evidence to suggest any occupancy change in regard to those two parts at that time.

[155] We drew attention earlier to certain changes which apparently occurred during the period between the surveys for the two earlier maps. Whatever the precise nature of those changes, they can be taken to have come about sometime between 1870 and 1899. That is, of course, entirely consistent with the building of the railway line, which we accept as having taken place between 1893 and 1895. Accordingly, we can assume that some of the changes had come about by 1895, but we do not know which ones and, in particular, that does not pinpoint the dates of enclosure and planting of woodland.

[156] Whilst it is unclear as to what the precise intention and policy of the then landlord was, it seems obvious enough that he was undertaking a positive policy of forestry management by 1899. If the planting and enclosure evidenced by the survey of that date had been carried out before the passing of the 1886 Act, then it is most unlikely that the subjects, and indeed any of the blue areas depicted in the forestry resumption application, would have become part of the grazing.

[157] As we have said, the mere presence or introduction of a fence (or other bounding feature) is not necessarily indicative of any change in status, but the installation of a fence along the north of Coille Dharaich wood is at least suggestive of its purpose being for woodland management by way of stock exclusion as opposed to stock management between the two areas. So, if the fencing had been carried out prior to the 1886 Act, it seems unlikely that the relevant part of the Coille Dharaich wood and any land to the south of it would have become part of the grazing at that time.

[158] Under reference to our earlier discussion as to the requirements for crofting ground to be arable or pasture, we have concluded that the subjects would not have met the implied definition of pasture in 1886 and accordingly were most unlikely to have become subject to the new legislation. Although our focus must be on the disputed area, the nature of the surrounding ground is relevant and it would be wrong to consider the subjects entirely in isolation. It is clear enough from our analysis of the early maps that they could at that time be seen as part of a more extensive area of similar ground. In a sense, our view as to the probable status of the subjects in 1886 is strengthened by the fact that they were at that time apparently almost entirely surrounded by woodland. Neither the subjects nor the ground in the immediate vicinity were apt to be described as pasture.

[159] Of course, as discussed earlier, it is important to consider the extent of tree or scrub cover. We are aware that areas of ground with some tree or scrub cover were nonetheless subject to grazing under yearly lease agreements and were accepted into the crofting regime in 1886 or thereafter. As we have said, it may simply be a matter of degree and that involves a subjective judgement. Where, as here, the evidence is somewhat limited, a proper conclusion becomes more difficult. But taking account of all aspects of our discussion above, we think it very unlikely that the subjects were a part of the grazing in 1886.

[160] Of course it is possible that some relevant change may have come about between 1870 and 1899, such that the precise nature of the subjects somehow might have been capable of classification as pasture at the passing of the 1886 Act. However, there is no indication that they were being managed other than as part of a larger woodland in 1899.

[161] It was suggested that there had been timber extraction at around the time of the building of the railway. That was not directly challenged, but it was not clear to us where precisely this timber had been located. If timber was indeed being extracted from the area of the subjects, then that would lead to a presumption that the land had indeed been afforested well before 1886 and accordingly would have been unlikely to have become subject to crofting tenure then. That is consistent with our earlier analysis.

[162] Had both the fencing and planting operations been carried out simultaneously or in any event after 1886 and the whole area, including the subjects, been subject to crofters common grazings rights at that time, then we might have expected to have come across some record of resumption having taken place. At a time when the crofting legislation was new, perhaps even contentious, it seems unlikely that a landlord would seek to enclose, manage and plant woodland on or within an area which was subject to crofting rights without recourse to a resumption application to the then Crofters Commission. There was no evidence of that.

[163] Equally, it seems unlikely that crofters would seek to insist on, or continue grazing of, managed woodland, even from a practical viewpoint if nothing else. We think an inference can reasonably be drawn that the woodland management operations were undertaken on the basis of the land being in-hand at the time.

[164] We accept that Mrs MacLachlan’s grandmother and aunt would have known “the extent of the Galmore ground”. It is likely that her grandmother would have been aware of the working of the land from the early 1900s onwards. On the basis of our experience in other cases, crofters and their families were, at least in the past, well aware of their rights and boundaries and generally tended to be respectful of them. We cannot know to what extent the detail of that knowledge has been accurately passed down to Mrs MacLachlan. That said, we have no reason to doubt that the general tenor of what we heard reflected the true position at the time, but it does not help us to identify the actual boundaries to which the earlier crofters worked. The evidence from Mrs MacLachlan’s family of the position in 1886 is simply not of sufficient weight to displace our deductions based on the early maps.

[165] On the basis that the woodland in the area was apparently open to the surrounding areas in 1870, it is quite feasible that the answers lodged by the crofters in the 1959 application were substantially accurate. The areas may well have been planted for grandeur “over one hundred years ago”: that implies a date prior to 1859. They may also have had grazing livestock on them since before 1880. However, even if they were grazed as part of yearly tenancies at some earlier time, the map evidence strongly suggests that by 1886 they were not apt to be classified as pasture and so unlikely to form any part of a common grazing then.

[166] We are very conscious that much of the above analysis is based on our own research of the relevant law and interpretation of the old maps which was not properly aired at the hearing. We had considered reverting to parties in that regard, but since we have been able to make a formal decision following our consideration of the second question, we have decided that it is unnecessary to reach one as respects the first. Accordingly, we considered that it was unnecessary to incur additional expense by involving parties further.

[167] In summary, consideration of the available evidence tends to support the view that the subjects fell to be regarded as woodland and not pasture as at 1886. As such they would not have been apt to have been subject to relevant grazing rights at that time and so not apt to fall into the ambit of the new crofting legislation. We therefore think it most unlikely that the subjects were part of the Galmore common grazing as at the passing of the 1886 Act on 25 June 1886, but we do not consider that it is necessary for the purposes of this case to make a formal finding to that effect.

Status after 1886

Introductory

[168] In view of the outcome of the above analysis, we now require to ascertain whether the subjects could have been added and were indeed added to the grazings area after 1886. That involves establishing the relevant factual history and then assessing the import of that when set against the statutory position at the relevant time It has proved necessary to undertake a fairly detailed analysis of the statutory background in regard to ways in which a common grazings might be enlarged by the addition to it of land which was not previously subject to grazings rights under the crofting legislation.

[169] We heard evidence covering events from before 1886 right up to the date of the hearing. As will be seen, there have been changes in the procedures whereby land, including land over which grazing rights were or came to be exercised, could acquire crofting status between the coming into force of the 1886 Act (on 25 June 1886) and the present day, as governed by the 1993 Act. Accordingly we have had to take care to ensure that our consideration of the factual position at any one time or over any specific period of time is carried out in the context of the contemporaneous statutory position.

[170] Whilst it seems that removal of crofting status from land has always necessitated some formal procedure or process, the regime as regards attaining that status in the post 1886 period, though nowadays also requiring some formality, was quite relaxed up until the coming into force of the 1961 Act. It will become clear that our analysis focuses on the period up to around 1960, with our decision essentially being founded on evidence of events prior to 1956. In that situation, little of what has happened ‘on the ground’ in the last fifty or so years has much relevance for present purposes and accordingly we have not required to dwell on evidence relating to that period.

Statutory basis

[171] Section 11 of the 1886 Act provided for application by five or more crofters to the Crofters Commission to have their holdings enlarged, in circumstances where the landlord would not agree. Section 12 set out the procedure to be adopted and it is plain that the addition of “rights of pasturage common as among themselves” over land not previously subject to the 1886 Act was envisaged. The requirement for there to be five or more crofter applicants was dropped by virtue of section 16 of the 1911 Act. Section 21 also provided for enlargement of holdings.

[172] For completeness, it may be added that 1897 Act gave power to the Congested Districts Board to acquire available land for constitution of new holdings or enlargement of existing holdings. Similarly, the 1911 Act, which extended the scope of the 1886 and 1891 Acts to cover areas of Scotland outwith the “crofting counties”, together with the 1919 Act, gave powers to the Board of Agriculture to acquire land and to constitute new holdings. There is no suggestion that any relevant change to the extent of the Galmore Common Grazings had been brought about at any time through any formal statutory process of enlargement.

[173] From these early provisions, we take two things. Firstly, it is plain that parliament envisaged that holdings, including common grazings, would and could be enlarged. Secondly, whilst there is provision for enlargement to be brought about by application to the Commission, nowhere is it suggested that any formal procedure was a prerequisite to voluntary or consensual enlargement at that time. In other words, it appears that enlargement could be brought about by mere agreement.

[174] Mrs MacLachlan’s fundamental proposition was that the subjects could be added to the common grazing by custom, prescription or grant: the remarks of Lord Sorn in Ross v Graesser. Although she did not make it particularly clear, we understood her position to be that Lord Sorn was referring to events which had taken place after rather than before 1886. We accept that yearly tenancies could have been established in a number of ways in the period leading up to 1886, but for our purposes, how they came to be established prior to 1886 is of no assistance to us in answering this second question.

[175] Surprisingly, although Ross has been quoted in a number of cases, the key to the answer to the second question does not really appear to have been either widely or directly addressed. There has been a commonly and long held view that it was only by some formal process that crofts and common grazings could be “enlarged” beyond their original extent through the addition of land which was not subject to the crofting legislation. Although most of the relevant early statutory material refers to crofts, there is nothing to suggest that as far as enlargement is concerned, common grazings are to be treated any differently.

[176] Although the 1886 Act said little about common grazings as such, full recognition of their existence – if that was necessary at all – came with the 1891 Act. Since that time there have been a number of cases in which the nature of rights in common grazings have been considered. Ross is one, but more recently Crofters Commission v Arran dealt with the matter in some depth. Other aspects of common grazings rights have also been dealt with in Castle v Philp and in Reference by the Crofters Commission. Whilst these cases set out various characteristics of the nature of common grazing rights and how we are to recognise common grazings, none of them deals expressly with how they were or could be created or, more importantly, how they could be added to.

[177] We have taken time to study the whole Ross case. It is important to have regard to the context in which Lord Sorn’s remarks were made. It is plain that, if read in isolation and out of context, they could be taken as authority for the view that formal procedure may not be essential to effect a change in the status of land. His comments were contained in his own judgement as part of the decision by a bench of five judges in a stated case by the Land Court. The case was directly concerned with what constituted a crofters common grazing rather than how it came to achieve that status and Lord Sorn’s remarks were not directly relevant to the matters which required to be decided. In legal parlance, they would fall to be regarded as obiter. Accordingly, in absence of proper argument on the point, they should not be afforded undue weight in a case, like the present one, where different issues are being raised. That said, we cannot simply ignore his views which we must assume were expressed after due consideration.

[178] We were not addressed as to how the doctrine of prescription might have been relevant here. In the circumstances, it is unnecessary to say much more on the matter. It is sufficient to say that we are not aware of any relevant crofting cases in which prescription, as normally perceived in relation to land issues, has been thought to have brought about a change in the status of land as far as bringing it into or taking out of the purview of the crofting legislation is concerned. Crofting involves leasehold tenure and it is far from obvious that additional rights in a lease can be acquired by prescription in terms of its normal application. It is more relevant to matters relating to heritable title and not to rights pertaining to a tenancy: Munro v Forbes. We do not think that any question of prescription is relevant to the present case.

[179] It important to emphasise at this juncture that the right which each crofter has to graze over the land of the Galmore grazing, which their predecessors originally acquired in 1886 and the shareholders continue to enjoy now, is not a right of tenancy as such, but a pertinent of that tenancy. The right to graze is deemed to be a part of the croft: 1993 Act section 3(4), but it is clearly not a part of the land of the croft itself. A crofting tenancy involves the granting of a lease of land. The crofters or their predecessors in the present case, who hold or have held such a lease, have also at some time been granted a pertinential right to share in the grazing on the Galmore pasture by the owner of the grazing land.

[180] Although custom and grant are usually treated as separate routes whereby pertinents of croft tenancies can come to be established, it is fundamental to our analysis in this case to point out that a pertinent in the context of crofting tenancies must be seen as something which has been included in the lease, by the owner of the croft land, which is and was intended to be enjoyed by the tenant of that land. If such pertinent or right can be shown to have been incorporated in the original lease or added to it by express grant from the landlord, then normally that will be sufficient to establish the right – although regard must be had to any further procedures necessitated by the statutory position at the relevant time.

[181] However, establishment of rights through custom or long use can also be seen to be founded on the principle that it is necessary to demonstrate that the landlord has granted or can be taken to have granted the right. No matter how long a crofting tenant or succession of tenants have treated their enjoyment of, for instance, an access route or a share in grazing as a right attaching to their lease of the land which they occupy, it cannot become a statutory part of the crofting tenancy without at least the implied agreement of the landlord.

[182] The matter may be a little more complicated when the owner of the croft land and the owner of the ground over which a right is exercised are not the same person. For our purposes that does not present a problem. Although ownership of the original estate at Glenspean has been divided over the years, it is clear that heritable title to all the land with which we are now concerned has always been held by the same individual at any one time.

[183] On the basis of the legislative provisions up until 1961, we are satisfied that where parcels of land or rights of grazing over land have been added to crofting tenancies since 1886 by way of express grant from the landlord or agreement between him and his tenant(s), then such grant or agreement can result, and normally will have resulted, in that land becoming subject to crofting legislation by way of enlargement of the croft or common grazing. There was no evidence in this case of anything approaching express grant by any landlord in relation to the subjects in the post 1886 period.

[184] Our review of the relevant wording of the statutes themselves and of some case law has led us to conclude that the widely held view that some formal process must occur in order that land which was not originally of crofting status can acquire that status is misconceived. In summary, we are satisfied that, until 1961, change could be made by agreement without recourse to any formal procedure. But there has to be agreement and we now give some consideration to that.

[185] Since a holding includes the rights to common grazing held along with the tenancy of it, we are satisfied that the provision for enlargement of croft land in section 11 of the 1886 Act applied equally to common grazing. The section plainly sets out to deal with a situation where a landlord does not agree to a proposed enlargement sought by crofters. It gives the crofters a right to apply to the Crofters Commission to intervene. Providing the Commission is satisfied as to certain matters, then it can order the landlord to lease the additional land. There is no overt provision in the 1886 Act or the 1911 Act which deals with a situation whereby the parties agree to an enlargement. We think that can be taken to imply that parliament anticipated that enlargement might come about by agreement alone. It was only much later that specific provision was made for enlargement by agreement: 1961 Act section 2(4).

[186] As indicated earlier, our decision on this second question relies almost exclusively on our analysis of the evidence in the period between 1886 and around 1960. Whilst we will summarise the relevant law relating to events occurring after 1960 later, we think it will be helpful now to consider two cases which we have found to be of some assistance in regard to the statutory position in the earlier era. They are relevant to our consideration of what constitutes agreement and, as will be seen, we think that whatever is meant by custom, in the absence of grant, crofting rights may only be created where agreement can be implied.

[187] The first is Spencer v Fraser. It was an appeal to the Full Court from earlier decisions of a Divisional Court. There was no dispute as to the existence of a common grazings. Nor was it disputed that since at least by 1946 the area in dispute had been treated and used as part of the grazing. The landlord’s representatives had been well aware of that use. They and the landlord had been advised of a proposal to regulate the grazings in 1984 and, at the time, it had been obvious that the disputed land was included. It had not been suggested that any landlord or representative of his had ever objected to the use or the proposed regulation. When the much later dispute had arisen, the then landlord did not know the extent of the grazings.

[188] Examination of maps had demonstrated that a wood (the disputed subjects) had been planted prior to 1886 and it had been concluded that it would not have become part of the grazings in 1886.The wood had been felled during the First World War. The main issue between the parties was the approach taken by the Divisional Court as to inferences to be drawn from established material in relation to any agreement which might have been reached between graziers and landlord.

[189] It was accepted that it had been competent for crofters and their landlord to agree to extend a common grazings or to create a new common grazings at the relevant time. The submission for the appellant was to the effect that the occupancy had been based on simple tolerance and a licence to use and that there had been no evidence that the crofters had relied to their prejudice on the land having the status of common grazing.

[190] It was agreed that the cleared wood had not been part of the grazings originally for the purpose of the crofting Acts. The Court concluded that the proper inference to be drawn from the evidence was that agreement had been reached between the graziers and the landlord that grazing of the cleared wood should be allowed and that there had been no grazing until then. There had been a new purchaser of the land and the sudden change implied agreement. The alternative of the crofters having seized the land to take advantage of the new owner seemed improbable. “Crofters tend to be respectful of established rights – although sheep, of course, are not” (page 14).

[191] The Court’s view was that the issue had become one as to whether an agreement to extend common grazings rights to an additional area of land was an agreement which required any special formality of constitution. Neither approval by nor notice to the Crofters Commission had been necessary in the 1940s.

[192] The outcome turned on whether the evidence supported an inference that in the short period from 1943 to 1946, there had been an informal agreement between the graziers and the landlord as to use of the former wood. The Court, in regard to relevant evidence from that period, said that it was “entitled to look at the whole evidence and reach our conclusions based on balance of probabilities, based on inferences properly to be drawn from that evidence”. The conclusion drawn from the evidence had been that at around the time of purchase by a new owner, the grazing of the woodland had started – such that there had been an agreement of some sort made at that time.

[193] Other relevant conclusions of the Court were:- “If a landlord reached agreement with shareholders of a common grazing that they could graze over additional land, the primary inference at that time must have been that this was to be an extension of the common grazings land”. Also “Where a landlord and tenant have for a period of over 30 years regarded a piece of land as part of the common grazings, an inference can be drawn that their understanding was soundly based”.

[194] The second case which we think is of relevance is Flavell v McIvor. It was concerned with enlargement of a croft, but we think that similar considerations applied at the relevant time to enlargement of a common grazing. At [45] the Court says:-

[195] “Although an express power to add land to an existing croft was introduced only by the provisions of sec 2(2) of the Crofters (Scotland) Act 1961, the existence of earlier provisions by which a landlord could be compelled to let additional land as an enlargement of existing holdings plainly assumes that it could be done consensually. No formal procedure was required for such consensual enlargement and, again, the consent of a third party was not required. Where additional land was made available by a landlord voluntarily, that could be on such terms as parties might agree (see note to sec 15 of the 1886 Act contained in C. N. Johnston Small Landholders (Scotland) Acts 1886-1911, 2nd ed, page 92) but there was nothing to stop them agreeing that the additional land would be part of the croft.”

[196] The Court concluded that “It will be seen, therefore, that, the whole scheme of things was fairly flexible and unregulated”. Whilst that remark taken in isolation would not be an apt description of the early crofting legislation, it seems clear enough to us that if crofters and their landlord agreed to add land to the common grazing, then it simply became a part of the grazing.

[197] On the basis of our examination of the statutory position and the cases cited, we are satisfied that enlargement of the common grazings could have come about by agreement and without formal procedure at any time between 1886 and the date of coming into force of the 1961 Act. Thereafter, by section 2(4) of the 1961 Act, there was provision whereby if an owner of land to which the 1955 Act did not apply agreed to grant rights in any pasture or grazing land to the crofters sharing in any common grazing, then as from the date at which such rights become exercisable by the crofters, the land would form part of the common grazing, and the Acts would apply accordingly to the common grazings so enlarged. There was a further requirement, under section 2(5), that the owner of the land was to give notice of the enlargement to the Crofters Commission.

[198] It can be noted that sections 2(4) and 2(5) became section 51 of the 1993 Act and the requirement for notice remained. It has been suggested that failure to notify the Commission of the agreement would not necessarily result in the agreement being ineffective as regards a change in status (Fraser v Spencer). Since our decision is founded on events occurring prior to 1961, the question of notice does not arise. For completeness, we would point out that revisions to section 51 introduced by section 47 of the 2010 Act mean that nowadays parties require to apply jointly to the Crofting Commission for a direction that the land is to form part of the common grazing.

[199] Having excluded prescription and express grant, we now look at the evidence to see whether it can properly be said that the undisputed occupancy of the subjects by the Galmore crofters is based on some form of agreement between them and their landlord. What was it which led the crofters at some time after 1886 and at least by about 1940 to start using and continue to use the ground as if it was part of their grazing? Had we been able to conclude in our answer to the first question that the subjects were part of the grazing in 1886, then of course it would have been unnecessary to look any further. It may be that use of the grazings has all the time been based on a right acquired in 1886, but in answering the second question we are assuming that not to be the case.

[200] Having regard, then, to our review of the statutory position, can it be shown on the evidence that on balance of probabilities agreement on the matter can be taken to have been made and accordingly a change in the status of the subjects effected?

[201] As outlined above, we are satisfied that, at least prior to 1961, agreement between landlord and crofters to enlarge a common grazings would be sufficient to make non-croft land a part of that grazings. We again emphasise that in the absence of express grant, there has to be evidence which supports at least an implied agreement. Mere tolerance by a landlord of grazing by shareholders on subjects which were not already part of their grazing would not normally be sufficient.

[202] It is perhaps also worth stressing that questions as to how and when land can fall outwith the crofting legislation raises different issues. Although it may seem a little strange, it is clear that once land has acquired crofting status either at the time of the passing of the 1886 Act or since that time, then it cannot simply lose that status without formal process. Abandonment or failure to use the land would not normally of itself lead to the crofting label being removed from the land and we think that principle applies equally to land subject to crofters’ grazing rights as it does to in-bye croft land.

[203] Whilst we will concentrate on the pre-1961 period in our review of the factual situation, parties did proffer evidence relating to the period between then and the present day. Where appropriate we will refer to that. However, it may be sufficient to say that, despite the questions raised in the 1959 resumption application, the longstanding belief by shareholders in the Galmore grazings that the subjects are part of the grazing has remained a firmly held one. That, perhaps, should be seen as the primary value of the post 1959 evidence. We make it clear, however, that no question as to the credibility or reliability of any of the witnesses arises in regard to evidence of that more recent period.

[204] There is plainly no evidence here of any specific written or verbal agreement as to the use of the subjects having been entered into by any of the relevant parties at any time. In contrast to Spencer v Fraser, nor is there evidence here of a change of practice taking place over a short space of time which might have followed on directly from an agreement thereby making it more likely that there had been one.

[205] That said, although there had been no previous grazing in the Spencer case, the Court remarked:- “Even without the evidence that there was no grazing before 1943, we consider that an inference can reasonably be drawn that the new purchaser would have ascertained the nature of tenancies and other rights when he acquired the subjects and can be taken to have agreed to grazing continuing”. We made it plain earlier that no amount of usage of land by crofters in the absence of agreement would be likely to be sufficient to lead to a change of status of the land. However, where it can be deduced from analysis of the evidence relating to and surrounding such usage, that the only rational explanation for it is that it has come about by virtue of an agreement of some form by the landlord to that usage, then that can be sufficient to vouch the agreement and accordingly meet the requirements necessary for enlargement of the grazing.

[206] We think it implicit that, when Lord Sorn was referring to custom, he would have had in mind that a long-standing practice of grazing by crofters could indeed lead to a presumption that the landlord had not just condoned the use of the land, but had positively agreed to it. In other words, that he, as the crofting landlord had added the rights over the land to the existing rights of his crofting tenants under their extant lease. Looked at in that way, the fact that there might never have been anything in writing is not perhaps as significant as might have been thought. It is also the case that very few crofting tenancies are held on the basis of a written lease in any event. The terms of a crofting lease are normally, in effect, limited to those set out in the crofting legislation and that is what binds the parties.

The 1959 Forestry Resumption case

[207] There was some focus both in the pleadings and at the hearing on what was to be made of the resumption application in Inverness RN 10593 – Secretary of State v Kennedy. Indeed Mrs MacLachlan relied heavily upon it in support of her position that the subjects were undisputedly part of the grazings. As it essentially forms a separate chapter of the evidence and in view of what we ultimately take from it, we think it appropriate to discuss it first.

[208] The application was lodged with the Court on 9 October 1959 by the Secretary of State for Scotland. It is averred that he purchased the Estate of Glenspean on 8 October 1956 for forestry development. He sought, inter alia, to resume 149.2 acres from the Galmore grazings for the purpose of tree planting. The four areas which he sought to resume were shown on a plan (a copy of which is lodged as Production 3 in the present application) delineated in red and shaded pink.

[209] In the application he also advised that several areas edged in blue on said plan, “being felled woodland areas, are in the hands of the landlord and do not form part of the said Common Grazings. It is the landlord’s intention to plant those areas also”. We shall call these areas “the blue areas” and it is sufficient to note at this stage that the main blue areas with which we are concerned comprise the eastern part of the Coille Dharaich wood as then shown extending to the western boundary of Glenspean Lodge and include, below the public road but north of the railway line, the subjects and Woodend, together with a block of land to the south between the railway line and the river.

[210] In their answers to the application, the then crofter respondents made a number of objections to the application. Amongst them was that the blue areas were part of the grazing. They were said to have been “planted for grandeur over one hundred years ago and at that time formed part of the grazings. The said areas coloured blue have been grazed since before 1880. For some time it has been the intention … to spray these areas against brush and bracken…”.

[211] In his replies to the answers, the landlord admitted that the blue areas had been “grazed for many years by the tenants of the three townships. Believed that they grazed these areas not as tenants but as licensees. Explained that the Landlord Applicant does not, in the circumstances, propose to dispute the position of the Respondents in regard to the areas and begs leave of the Court to amend the application to the effect of including in areas A and B the said lands outlined in blue adjoining those areas respectively…”.

[212] Thereafter, it seems that there were negotiations between parties and, ultimately, following lodging of a joint minute and amendment of the application, a total of 557.1 acres was authorised to be resumed under reference to a plan, a copy of which is lodged in the present application as Production 7.

[213] It is reasonably clear that the plans lodged in the application have as their foundation the 1903 1:10,560 edition OS map. As far as any potential relevance for our purposes is concerned, the only area which was actually finally authorised to be resumed in the Court’s Order is labelled “B. 56.100 ACS.” on the plan, Production 7. It had been part of one of the blue areas in the original application. This is an area to the north of the subjects which is now agreed to be outwith the grazings. Whether it was ever in the grazings was of course an issue in the 1959 case. At our inspection we noted that, at least at its south and east boundaries, it was now established conifer woodland enclosed by fencing.

[214] Although, as Mr Smith pointed out, there is evidence in the case that the blue areas were felled woodland, that does not – as he would have it – prove that they were not, or were never, part of the grazings. It is said that the areas had been grazed for many years, but of course that does not tell us anything about when the grazing started, when the woodland was originally established or when it was felled. What the case tells us is that the Secretary of State thought they were not part of the grazings and the crofters did not agree.

[215] We accept that the evidence in the present case supports the view that whether the sheep were being deliberately managed to be in those areas or not, the state of the hill fencing at that time appeared to be such that, in the absence of close shepherding, stock would have been able to access the blue areas of their own volition. However, we also agree with Mr Smith that at no time did the Secretary of State formally move from his primary position, which was that the subjects and the other areas edged in blue on the application were in hand and not part of the common grazing. Accordingly we do not support Mrs MacLachlan’s submission on that matter.

[216] It is important to note that no formal decision in regard to status was sought from, or made by, the Court in the application. No attempt appears to have been made to explain any proper basis for the position which the Secretary of State adopted originally. If he had been in possession of evidence to support his position, then it is a little surprising that it was not produced. Had he pursued the matter and lodged evidence, documentary or otherwise, as to the basis of his view, then it might have carried some weight in the present case. It could well have influenced the outcome.

[217] Of course it can equally be said that the respondents at that time did not present a particularly strong case for the alternative view, but it was more weighty than that of the Secretary of State. We repeat, however, that the 1959 case was not about status. Nowhere in the process of the application – or indeed in the pleadings or hearing in the present case – did we hear of any hint of a basis for the stance taken by the Secretary of State at the time. On balance we have come to the view that the crofters would have had better knowledge of the status than the Secretary of State – and that is based not only on what was said in that case, but what we have heard in this one.

[218] It is quite clear to us from examination of the process that the blue areas were intended to have been part of a larger forestry scheme from the outset. The only reason they were shown delineated in a different colour from the other areas on the application plan is that they were considered by the Secretary of State to be in-hand land whereas the areas edged in red were said to be subject to the rights of grazing of the crofters.

[219] Whilst Mr Smith sought to argue that the Secretary of State had only included the blue areas located to the north of the road in his amended resumption application, we agree with Mrs MacLachlan that he intended to, and did in fact, include all of the blue areas. It had been his original intention that they would all be part of the forestry scheme. There is no reason for us to question the accuracy of Mrs MacLachlan’s calculations on Production 26(d).

[220] We are satisfied that parties agreed that the application be amended by inclusion of the areas edged in blue such that the area sought to be resumed at that stage (the hearing on 20 January 1960) was 258.80 acres and it included not only the areas “A” and “C” edged in red on the original application, but also all of the areas shown on the original plan edged in blue, including the subjects. Whatever the Secretary of State’s intention, the outcome of the amendment sought in the replies to answers dated 31 December 1959 was an application which craved authorisation to resume from the Galmore Common Grazing some 258.80 acres, including the subjects.

[221] From examination of the process, it is not possible to say with any confidence why the Secretary of State made the amendment he did. It is plain that the original intention was to plant all the blue areas and we might surmise, as Mr Smith did, that in order to meet the challenge from the crofters to the effect that all the blue areas were part of their grazing, he simply sought their inclusion in the application for resumption in order that progress with planting could be made. In the end, for reasons which are not wholly clear, but which do not concern us, only a part of the blue areas above the road were in fact resumed.

[222] We do not know what records the Secretary of State or his agents were given at the time of his acquisition of the estate in 1956 or what further researches he carried out after that. If he had had in his possession documentary or other material which gave support to his initial position, a question arises as to why he did not mount a proper challenge to the crofters’ views. As Mr Smith suggested, it could have been a commercial decision to avoid holding up a much bigger project. It was clear in the original application that there was urgency “to commence the proposed planting programme as soon as possible” in respect of the areas to the north of the Coille Dharaich wood, so it would not be surprising if the intention had been to undertake the work on the blue areas at the same time.

[223] Mr Smith suggested that the statement of facts in the 1959 application would have been based on historic evidence. We agree that there must have been some basis, but for us to take any more from the case, we would have to be taken to that historic evidence. The respondent crofters did not themselves present much by way of better evidence to support their own position, but they did not in any way depart from their view as to the status of the blue areas. Whilst it may be that a commercial view was being taken by the Secretary of State and the Forestry Commission, there is simply no indication of the basis for the statement that the subjects and indeed all the areas edged in blue in the application were in-hand and not part of the grazing.

[224] It is possible that his agents had taken the view that if the blue areas were planted in 1860, they would have been unlikely to have been pasture in 1886 and that nothing had changed since then. He may have, as we have done, looked at the earlier maps and concluded that the blue areas, which appeared from the maps to have comprised forestry in 1899, would have been most unlikely to have been part of the grazing then. We simply do not know what he thought or what advice he had received. To say any more would be unwarranted conjecture by us. We are satisfied that, for our purposes, more weight falls to be attached to the crofters’ position in 1959 than that of the relatively new landlord.

[225] The expression “believed (our emphasis) that they grazed these areas not as tenants but as licensees” simply means that he thought that the crofters were using the land on the basis of a licence and not on the basis of rights attached to their crofting tenancies. The past tense (“believed”) is commonly used in court pleadings and other legal documentation. It does not, as Mrs MacLachlan would have it, indicate any change of view by the Secretary of State at any stage as far as the legal status of the blue areas was concerned. As at the date of the application and as at the date of his amendment his clearly expressed view was and remained that the blue areas were not subject to crofting tenure. It is not uncommon for us to received applications for resumption which cover areas in the crofting counties where there is an element of doubt as to the true status of the subjects of the application. The authorisation of resumption and subsequent surrender of the land by the crofters has no impact on the status of the land if it was not already under the purview of the crofting Acts in the first place.

[226] Clearly the failure by the Secretary of State to properly counter the position adopted by the crofters has the effect of adding weight to Mrs MacLachlan’s position today. That said, little by way of evidence appears to have been adduced by the respondent crofters to support the view that the blue areas were all part of the grazing. Accordingly, it has been necessary for us to look for other evidence in that regard in the present case.

[227] We emphasise that there is no record of the status issue being ventilated at any hearing and no decision on the mater was made by the Court. But, when the broader picture revealed by the evidence in the present case is taken account of, we consider ourselves entitled to attach some weight to the plain view of the crofters in 1959. At that time, the events which took place in the earlier days of crofting, including changes in land use, would have been within living memory. We think it most unlikely that the position adopted by the respondents in the resumption application was just a whim to acquire more land or achieve extra compensation. On the contrary it seems that they were already intending to deal with the bracken and scrub development in those areas. If that was the case, we doubt the expenditure on spraying would have been justifiable if they did not think that the land was of some grazing value to the sheep stock club and that they had some security of tenure over it.

[228] We are also satisfied that parties’ discussion in the present case over use of the word “adjoining” in the earlier one has no merit. It is plain that all the areas edged in blue were added to the application to resume as at the date of the amendment brought about by the Secretary of State’s replies to answers of 31 December 1959.

[229] We did not find Mrs MacLachlan’s proposition in relation the “tongue of land” being “left” following the resumption so as to facilitate access from the hill to the Gorge Park to be persuasive or of much assistance. From our own inspection, the tongue of land could at best be described as facilitating access to the roadside at the east of Woodend. The basis of her proposition may be well enough founded, but there is nothing in the process which might vouch it. It seems to us likely to have been the result of what appears to have been extensive negotiation between the crofters and the Secretary of State as to the location of the final areas to be planted and mitigation of the impact of the resumption on the grazing and the sheep stock club. It takes matters too far to suggest that it shows that the Secretary of State had been persuaded that any of the blue areas, the subjects included, were in fact subject to crofting tenure.

[230] We accept that the area finally authorised and planted as revised area “A” appears to have an east boundary which is consistent with an intention to facilitate use of the tongue for a purpose other than commercial forestry. We may say that said area, whatever the intention for it in 1962 when the final Order was signed, is now quite densely populated by scrub trees and bracken. It appears to us that even without the scrub and bracken, any access to the roadside for loading / unloading / movement of stock would be fairly restricted, at least insofar as the present layout is concerned. Whilst it may be possible to take stock onto, or remove stock from, the hill at the south end of the tongue, it is far from being a practical access as presently laid out.

[231] It is also accepted that the area may have been suitable for, and used as, a holding area for sheep before clipping. Such use would not be particularly surprising given that it appeared to be accepted that the blue areas had been used for grazing for many years before 1959. However, we stress that on whatever basis the “tongue” came to exist, we have regarded it as of no significance in our decision.

[232] Had we not been aware of the full background to the forestry case through detailed examination of the process, then authorisation by the Court of resumption of an area said to be common grazings would be normally be a strong indicator of the status of the land at the time of the application. However, as we have said, we are aware of a number of cases in which resumption of an area where the status was uncertain has been authorised. If the areas authorised to be resumed were not subject to crofting status, the Court’s order would be of no effect; indeed, in strict terms, the Court would not have had jurisdiction to authorise resumption in that situation. Neither the lodging of an application for resumption nor the authorisation of it by this Court is determinative of the status of the land – even if it would normally lead to a presumption that it was subject to crofting tenure.

[233] In the event, no land below the road was authorised to be resumed in the 1959 application. For our purposes, all the case really tells us is that the crofters sharing in the Galmore Grazings at the time were firmly of the view that the subjects and further areas adjoining and adjacent to them were part of the grazings. Set against that is a landlord, who had taken over the estate three years earlier and who took the view (no doubt it was the view of his officials and legal advisors) that those areas were not subject to crofters’ grazing rights. Whilst we accept that he subsequently agreed to treat those areas as though they were part of the grazing for the purposes of the application, we do not accept Mrs MacLachlan’s primary proposition that he either conceded or agreed that the blue areas were part of the Galmore grazing. Whatever the true status of the subjects or of the blue areas in 1959, the resumption application did not have the effect of making them a part of the grazing at that time.

[234] Finally, in respect of the forestry case, we do not accept Mrs MacLachlan’s view that the inclusion of the blue areas by the Secretary of State was simply a tactic by him to bring about a dispute over those areas. There is not a shred of evidence to that effect. We consider it highly unlikely that the Secretary of State or those advising him would have used a resumption application in attempt to establish the status of land whose status was in doubt. There is no hint of any such doubt about matters as at the time of the initial lodging of the application and in any event, the obvious way to have clarified matters would have been to seek a positive determination on the issue.

Discussion

[235] If it be the case, as we strongly suspect from our earlier review, that the subjects were not part of the grazing in 1886, is the evidence sufficient to vouch an agreement of the nature outlined above in our analysis of the statutory position?

[236] Whilst our discussion of the forestry resumption case has not directly availed Mrs MacLachlan in the way in which she might have hoped, it has augmented the evidence available to us in our review of the factual material relevant to our consideration of the question of whether there is any proper basis for us to reach a firm decision on the second question. Broadly speaking, Mrs MacLachlan’s submission in that regard was that the grazing rights in the subjects had been established through custom (to use Lord Sorn’s terms).

[237] In view of the statutory background, we consider, firstly, the evidence of use of the subjects up to around 1961. If that evidence is sufficient to vouch an agreement whereby the subjects became part of the grazings, then there is no need to look at later evidence and indeed no need to concern ourselves with the question of whether absence of notice to the Crofters Commission is relevant.

[238] Mrs MacLachlan did not go as far as to suggest that there had been any particular event or series of events which fell to be regarded as having led to a formal change of status at any point in time. She simply averred that the subjects had been “occupied by the crofters for generations”. That seems to us to be a somewhat sweeping and embellished view of the facts when the evidence is properly analysed. We wholly accept that the wider Galmore grazings have been so occupied since before 1886. But as regards the subjects themselves, we consider proven use of them is somewhat less encompassing than Mrs MacLachlan suggests.

[239] There are a few adminicles of evidence from the early years after 1886 which might be thought to assist Mrs MacLachlan’s position. She made passing reference to documentary evidence that the estate, in around 1890, “gave the crofters larger areas”. Although the source of that evidence was not disclosed and the reference appeared to be to either in-bye or other land close to the townships as opposed to common grazing, it could be said to give support to a view that, on the ground, it may well have been thought at that time that land was relatively easily added to crofts. It might also, perhaps more importantly, suggest that the landlord of the day (Mackintosh of Mackintosh) was not averse to extension of crofting tenure. The history of ownership of the estate as set out on Production 20 was not disputed and it may be noted that Mackintosh was landlord up until November 1943.

[240] We heard of the existence of old photographs showing the hills to be bare, with only a few trees. But those photographs were not lodged and it was not clear what area was being referred to nor when. However, they may have been thought to imply that what we have called the blue areas met the description of “felled woodland” at some stage in the first half of the twentieth century. That would be consistent with the evidence that the woodland had been cleared and that, accordingly, the area had at least become capable of being grazed in practice.

[241] However, of limited weight as it may be, the most reliable evidence of use and of the views of the crofting community at the relevant time comes from Miss MacInnes. We have already commented on the quality of her evidence. She is clear in her view that the area comprising the subjects as shown on the map attached to her statement has always been part of the grazing. She tells us about walking “though the Galmore Common Grazings” on the public road. That entailed going past the subjects, but she also talked of walking “across the park” to get to the houses at the railway line. The reference to a ‘park’ seems to be a natural one. We have already noted the existence of a path through the subjects on the 1902 map which almost certainly served that purpose. Her evidence was that the roadside fence had been replaced when the road was improved. That implies a previous fence and a new one. Her reference to use of the subjects as a tup park is consistent with some other evidence. It implies that the Gorge Park took the form of a stock-proof enclosure from around 1940 and probably before that.

[242] In relation to her description of where the boundary at the west lay, it also seems to be relatively naturally expressed. From our inspection, it is clear that there is a steep gully or gorge which, though not stock-proof, forms a recognisable boundary between the disputed subjects and Woodend – at the east. There is a lesser gully just on the west side of the new rock cutting. Her statement is consistent with that. Of course we have no idea how she was questioned and what her precise answers were, but the tone of her statement does not suggest strained responses.

[243] Whilst she offers no basis for her view as to how she thought the boundary had come to be as she described it, we accept – no matter the quality of her evidence – that she would have had the family background to know something about boundaries and occupancy. It is entitled to some weight from that viewpoint alone. There is no material before us which directly counters her views. Her evidence cannot simply be discounted as Mr Smith suggested. We are satisfied on balance of probabilities that, at the time of her childhood in the late 1930s and early 1940s, the subjects could properly be described as a field or enclosure to which the wider Galmore crofting community considered they had rights of occupancy as part of the common grazing.

[244] We think that Mr MacIntosh’s evidence also vouches that there was at least some deliberate use of the subjects during the 1950s. Whatever the basis of the grazing, it appears to have continued during the period of the Secretary of State’s ownership from 1956. However, his statement that the ground had last been securely fenced in around 1956 to 1958 appears to be at odds with Miss MacInnes’ evidence. It may be, however, that he thought he was only being asked to speak about the period up to 1959. The impression we have is that the earlier fences had reached the end of their useful life before the road improvements were carried out and that thereafter new fences were put in place. Although events after 1956 are not of great concern to us, we are satisfied that the subjects could still be described as a stock-proof field or enclosure for significant periods of time since that time.

[245] The 1903 map, Production 31, appears to indicate that a fence had been constructed on both the north and south of the road by the date of survey in 1899. It would have been helpful to have known when the subjects had first been properly enclosed and why. The erection of fences could have been associated with woodland protection. They might have been installed by the roads authority or possibly by the crofters either for reasons of safety or to facilitate better usage of the subjects for grazing livestock. We simply do not know, but we accept that the subjects were enclosed and deliberately used by the crofters by the late 1930s.

[246] There does not seem to have been any challenge to the averment in the forestry resumption case that the blue areas, which included the subjects, were felled woodland. Whilst we do not know when the subjects and the surrounding areas were first cleared or thinned, the existence of those fences is consistent with the evidence of use. There is nothing to prevent a fence, which was originally erected for the purpose of stock exclusion to protect woodland, from being equally suited to containing stock in the area after the woodland is felled. When the field was stock-proof, then the crofters could make a choice as to whether stock was contained within it or not by use of the gate.

[247] For holding the tups or for lambing, the evidence was that the gate was kept shut. Equally, we are told that the gate was, at times, deliberately left open. We accept that, which is consistent with the practice of allowing sheep which had strayed from elsewhere to utilise the grazing in the Gorge Park. We also accept that if the subjects had been used for lambing, then the probability of sheep returning there by way of their hefting instinct, if free to roam from elsewhere, would also be increased.

[248] The above analysis is consistent with Mrs MacLachlan’s own recollection of the subjects in the early 1960s. She described them as having the appearance of an open field which could be grazed. We took from her description that the land was not then afforested to any great extent nor was there the dense cover of bracken which can be seen today. We are satisfied from our inspection that the present state of the subjects in terms of scrub woodland and bracken cover is consistent with her description of them at that time.

[249] It is unlikely that the subjects would have attained either the appearance of “an open field” in 1960, or indeed their present condition, in the absence of a deliberate management decision at some earlier stage whereby trees and scrub were at least controlled or removed. We doubt that such change could have come about through grazing by stock (especially sheep) alone. That would simply not have led to sufficient suppression of regeneration so as to create anything open enough to meet Mrs MacLachlan’s description of the subjects in the 1960s. If all or even the most commercially viable timber had previously been removed, then no doubt introduction of some grazing would, we think, be capable of bringing about a change in the nature of the plant cover whereby, when associated with enclosure, Mrs MacLachlan’s description might be apt. There is, accordingly, support for the evidence that the subjects and surrounding areas were substantially cleared of trees and scrub at an earlier time.

[250] We noted a number of well-established trees on the ground, some of which may well have been in place before 1960, but most of them appeared to us to have developed from regeneration of birch, with only occasional oaks. Their density was not high. The non-wooded areas were covered in dense bracken and, as we noted earlier, there is one particular area with no trees on it at all. The evidence was that grazing of any consequence effectively ceased several years ago. What we saw was consistent with there having been a limited tree population within and around the subjects in the 1960s, followed by some elements of grazing since, but not recently. In the absence of any control of scrub / bracken either manually or through grazing / browsing, particularly by cattle, then we consider that the state of the subjects today, as seen at inspection and demonstrated by the photographs lodged as Production 33, supports Mrs MacLachlan’s evidence.

[251] There is no dispute that there were club sheep in and around the subjects for many years in living memory. As Mr Smith would have it, this could have come about entirely as a result of the freedom of the sheep to roam and / or lack of proper shepherding and absence of objection by the landowner. The evidence of the gate to the subjects lying open for extended periods would be consistent with the suggestion by Mr Smith that the use of the ground was more accidental than deliberate. Whilst we accept that there has been what might be termed opportunist grazing by club sheep, the evidence supports Mrs MacLachlan’s contention of planned and deliberate use.

[252] The evidence of ‘deliberate’ use at least in the period up to 1959 is sufficient for us to conclude that the subjects were in fact positively used by the crofters and their club sheep for at least a twenty year period up to 1959. If other fences were poor, then facilitating access to pasture by leaving a field gate open may well be seen as a justifiable policy, at least in the short term. It could well have helped to take sheep off the roadside. It may also be said that the subjects are relatively close to and accessible from the in-bye crofts, so it would not be surprising to find that they might receive some degree of deliberate management in terms of holding tups or lambing ewes. Of course that proximity would make unwarranted use easier too, but the actual use is not in doubt, the real question being the basis for such use. We find that said use was based on the positive intentions of the shareholders.

[253] The above analysis is consistent with the crofters’ position in 1959 and their statement that they had been intending to spray for brush and bracken for some time. It is also consistent with the Secretary of State’s statement that the areas were “felled woodland”. Of course that raises the question of when they were felled. We do not know the answer to that, but it seems to us that the presence of notable tree and bracken cover on the 1968 map (Production 32) would suggest that the clearing had been carried out some time before the resumption application.

[254] As indicated earlier, we are satisfied that the subjects and the surrounding areas were wooded in 1899. If they had been felled in, say, 1930 and not replanted, then the description as “felled woodland” could still have been appropriate – even if potentially misleading. A better description in 1959 might have been “felled woodland presently subject to grazing”. Whilst the precise state of the subjects and the blue areas at that time is not particularly clear, we are satisfied that Mrs MacLachlan’s description of the Gorge Park as a field is more apt to describe an area which is predominantly grazing land than an area of woodland.

[255] Although various areas of the original estate have been sold or otherwise disponed over the years, it is not disputed that title to the subjects and to the undisputed main grazings area of Galmore to the north of the road has always been held by one individual at any relevant point in time. The accuracy of Production 20, which traced the history of ownership of the estate and was prepared by Mrs MacLachlan, was not challenged. We had no documentary evidence of the various land transactions and accordingly no detail of any relevant interests in the land beyond that of the owners themselves. In relation to the estate now owned by the respondents, including the subjects, we note that there appears to have been seven different transfers of title between 1886 and the present day – three of those up to the sale in 1956 to the Secretary of State for Scotland.

[256] If, as we strongly suspect, the subjects were not part of the grazing in 1886 because they fell to be regarded as woodland and not pasture, it would have been unnecessary at that time and thereafter for the incumbent landlord to give thought to potential use of the ground by crofters. The evidence is indicative of the trees having been either felled or substantially thinned at least by the early 1940s and probably earlier. That was during the currency of Mackintosh of Mackintosh’s ownership which would suggest that it may well have been he, or his agents, who decided to clear the trees.

[257] What we have to decide is whether, on balance of probabilities, at or after the clearing of trees from the subjects, and probably other areas surrounding them, the landlord at the time, or one of his successors, either agreed, or can be taken to have agreed, to the use of the land by the crofters as an extension to their grazing. We heard from Mrs MacLachlan, albeit only in passing, of other land being added to the crofts, so it might not be surprising if a view was taken that some of the former woodlands were seen to be of minimal benefit to the estate, but potentially advantageous to the crofters sharing in the grazing. We simply do not know what the landlord or landlords thought or what discussions or negotiations, if any took place. But that does not mean there were none. Clearly, if the land was already part of the common grazings, then there would have been no need for such discussions. However, if it was not, then we are satisfied on balance of probabilities that such discussions must have taken place.

[258] Taking the evidence as a whole, we have concluded that the subjects have been used by the Galmore crofters to graze their club sheep, perhaps at times sporadically and perhaps sometime more by accident than design, for at least 70 years or so until about 2008. We are also satisfied that such use was founded on a long held belief that the subjects were a part of the Galmore grazing. Until around 2008, the only challenge to that use of which we are aware is that by the Secretary of State for Scotland in the 1959 resumption application. From our analysis of that case, we could find no valid basis upon which the challenge was made, but it could be said that from that time onwards, the crofters had been alerted to the possibility of challenge.

[259] Despite the ‘warning shot’ in 1959, it may also be said that the views of the shareholders since that time have been to the same effect. We accept, however, that those views have almost exclusively been derived from their predecessors, who were, of course, respondents in the 1959 case. Their views, whether based on personal experience or hearsay from their families, were founded on a period some 55 years closer to 1886 than today’s witnesses. Their position as regards the status of the blue areas, including the subjects, contained in the answers which they lodged at that time were not specifically countered by contrary evidence at the time. We have heard no other substantive evidence which could be said to undermine the position which they adopted.

[260] Thus, although the evidence of occupancy of the subjects is not particularly weighty, we are satisfied that, at all times between around 1940 and the lodging of the forestry resumption application in 1959, the predecessors of today’s respondents as shareholders in the Galmore grazings were of the view that (a) they were entitled to graze on the subjects and (b) that such entitlement was based on a right of grazing in common as a pertinent of their croft tenancies. We have reached that view on the basis of a number of elements of the evidence before us in this case, but taken together the whole evidence is, we think, quite powerful in its support of our conclusion.

[261] The first evidence of any disagreement we are directed to is that by the Secretary of State in 1959 and the only other objection of which we are aware is the one by Mr Smith now. It could be said that the crofters were first “put on notice” of a possible challenge to their rights of occupancy in 1959. That is not to say that there was never any earlier objection, but there is no hint of evidence of one. We consider that the ongoing deliberate use of the subjects by the crofters since around 1940 at the latest entitles us to assume that there has not been any such challenge.

[262] Of course, if the subjects had already been established as part of the grazing by 1959, then any objection of the Secretary of State at that time would have been irrelevant. But for the purposes of answering this second question we are assuming that the subjects lay outwith the grazings in 1886. We stress that in the forestry application, the position adopted by the Secretary of State did not result in a direct formal legal challenge to the status of ground and the decision in the case did not effect any change of status as far as the subjects are concerned.

[263] Taking account of all the evidence, then, and giving it appropriate weight, we are satisfied that during the period from around 1940 until 1956, the subjects had been enclosed; had been used as a tup park; and had been used for lambing and grazing of breeding ewes and lambs belonging to the Galmore Club. We find these to have been deliberate uses and not purely accidental ones based on any lack of shepherding and fencing.

[264] Importantly for our purposes, having regard to the terms of the legislation prior to 1961 and the cases discussed earlier, we conclude that said use, without any suggestion of objection by any of one of the four previous landlords, entitles us to presume that those occupying the land were doing so on the basis of some form of agreement with one of them. We do not know when or how the Secretary of State initially adopted the stance which he took, but it is obvious that he would not have done so if he or any of his agents had entered into such an agreement.

[265] As Mr Smith very properly pointed out, if said use was not interfering with the landlord’s enjoyment of his property, it might simply have been tolerated. We accept that, but if the subjects were not already part of the grazing, for the land to have been used over a period of at least 15 years and in the ownership of a succession of four different landlords, we think it more likely that some form of agreement was reached between one of those landowners and the shareholders that the land should become a part of the grazings.

[266] We are also mindful of Mr Smith’s submission to the effect that there was no evidence that the position of various landlords had changed over time as regards the subjects. The important question is not really to be seen as one of whether any landlord “changed his position”, but whether a particular position was taken. It seems tolerably clear that at some stage, probably in the Mackintosh era, established trees growing on the subjects and surrounding ground were felled. That would have been a deliberate decision by those managing the estate. It is unlikely that the landlord gave no thought at that time to potential future use of the land.

[267] It is of course possible that the intention was to replant but for economic or other reasons that was delayed. Even if that was the case, the facts are that replanting does not appear to have taken place and the only evidence of intention to replant came in 1959. The grazing which was taking place at least by 1940 may have commenced by agreement, by way of sheep straying into the subjects or by deliberate action by the crofters. Of course, we would have preferred to have been able to identify some specific time and some specific change, but nonetheless we are satisfied that the whole evidence favours the conclusion we have reached. Although the case was not on all fours with the present one, we find support for our conclusion in Spencer v Fraser. Had there not been as many changes of ownership during the relevant period in the present case, we might have reached a different view.

[268] But it seems to us that there has been a long period of acceptance by successive landlords of ongoing, perhaps short of continuous, deliberate use of the subjects for grazing by the club. Those landlords would have been, or can be taken to have been, aware of the grazing. In the face of the facts of this case, we think that approval to that use would most probably have been specifically given. We wholly acknowledge that it is not possible to point to any specific time when such agreement was reached nor to identify any particular landlord who entered into the agreement, but we do not consider those to be necessary prerequisites.

[269] In short, assuming that the subjects were not part of the grazing in 1886, we are satisfied that there was an agreement between one of the earlier landlords and the crofters sharing in the grazing that the subjects were to become part of the Galmore common grazing on a permanent basis. Such agreement may have taken place when stock was already grazing on the subjects, whether deliberately or otherwise, or the grazing may only have started at the time of the agreement.

[270] We have only reached our view following careful consideration of what is necessary, in law, to imply an agreement. However, at any time up to the passing of the 1961 Act, once such agreement has been established, the statutory framework is such that the agreement is sufficient to bring the subjects within the scope of the crofting legislation. It goes without saying that evidence of a written agreement would be the preference, but in this case it can be assumed that it was verbal and that is sufficient: Spencer v Fraser.

[271] It may be that a similar ratio applies to other areas in close proximity to the subjects but we make no finding as regards their status one way or the other. It is unnecessary for us to do so and indeed a significant proportion of the relevant evidence related specifically to the subjects in question.

[272] Whilst it is not directly relevant to the outcome in this case, prior to 1976, a decision by a landlord to offer to crofters an area of land which had potential for future afforestation would not necessarily have been a particularly difficult one from a commercial viewpoint. At that time the possibility of future resumption for afforestation or other purposes already existed. Not only that, but in those earlier days, the compensation provisions were not particularly onerous and the crofters were not entitled to share in the development value.

[273] Since our decision is based on events prior to 1956 – albeit partly vouched by evidence subsequent to that date – it is unnecessary to say much more about use of the ground and the positions adopted by crofters and landlords thereafter. Mr Smith indicated surprise that there had been no resumption application associated with the road widening in around 1960 of which we did hear evidence. Whilst we do not rely on it at all, we note that there was in fact a resumption application in respect of the road works and there is reference in it to discussion between the roads authority and the crofters about the fencing of the roadside. It seems unlikely that appropriate works would not have been carried out at that time, given the increasing traffic on the highway and the dangers associated with straying livestock. For the interest of parties, we set out a little further detail of that application later.

[274] We do not doubt that the subjects became stock-proof again following the road widening. At inspection, we could see remnants of a roadside fence along the north boundary of the subjects. Little is left of it, but it could well have been one erected at time of the road widening. Although much would depend on the materials used and maintenance thereafter, what we saw was consistent with it being the remnants of a fence erected some fifty years ago.

[275] Mr Smith drew our attention to what might be taken from the 1968 map, Production 32, which was based on a survey in 1966. The subjects appear then to have been populated by non-coniferous trees and bracken. That is how we found them to be today. It may also be noted that, in 1966, the surveyors have recorded that land to the north of the road – land which is now clearly afforested – was essentially similar to the subjects in terms of tree / bracken cover at that time. It is sufficient to say that we find nothing on Production 32 which is inconsistent with the evidence of the pre 1956 era and the use of ground since then.

[276] For completeness we also mention Mr Strachan’s evidence – particularly in relation to roaming sheep. It is plain that, in around 2008, sheep were not being contained within the main grazing area to the north of the road and so unsurprising that they might end up in the Gorge Park, amongst other areas. That the sheep appeared to stay in the Gorge Park may well have been related to elements of hefting, but it could also have been indicative of there being grazing available there at the time. His evidence assists us in concluding that club sheep were still, even if latterly wholly by accident, utilising the subjects until well into this century. But for reasons already outlined, the evidence relating to recent events, except insofar as it supports that of the earlier period, is irrelevant and we take no cognisance of it.

[277] In any event, as we have already pointed out, even if ongoing and deliberate grazing by the shareholders’ sheep by agreement had been established in the period post 1961, it would not necessarily have availed the applicant. That is so because the apparent lack of notice being given to the Crofters Commission would have to be considered. We would not have wished to rule on that issue without being properly addressed in regard to it, although we noted earlier that failure to notify may not have the effect of rendering the agreement ineffective: (Fraser v Spencer).

[278] For completeness we comment on four other matters raised earlier.

Loss of crofting status

[279] We are satisfied that, at least by 1956, the subjects were part of the grazings. We do not recall Mr Smith going as far as to suggest that any periods of non-use or of sporadic use by roaming sheep would have the effect of taking the land out of crofting tenure if it was already in it. Failure to utilise crofting subjects, whilst it might be a basis for termination of individual tenancies, does not of itself have the effect of removing the land from the purview of the crofting legislation.

[280] Broadly speaking, since 1886, parliament has sought to ensure that the status of land which came under the ambit of the 1886 Act was not to be easily denuded of its crofting label. In Whyte v Garden, the Land Court made clear that the crofting status of the land was not to be readily challenged – it could only be taken out of the Court’s jurisdiction after due observance of the formalities of statute. It “impresses on the holding itself a certain character which cannot be altered by the mere will of the occupant”. We are equally satisfied that the same ratio applies to any grazing rights which were or are held as a pertinent of the croft tenancy. The more recent case of Smith v Murray was to the same effect.

[281] The subjects having acquired their status as part of the Galmore grazing, there is no evidence to suggest any subsequent change in that regard.

Secretary of State for Scotland v McIntosh : Resumption for lodge access

[282] Mrs MacLachlan’s remarks were not directed at the access route which had been chosen and which necessitated the resumption application. Rather her propositions related to the choice of the site for the shooting lodge in the first place. We know nothing about the requirements of the site or the basis for the purchaser’s decision. It is not obvious to us that a shooting tenant would necessarily wish to be based in premises situated on the Gorge Park rather than where the lodge was actually built. In any event, we take nothing from this line of evidence.

[283] We think it is nothing more than conjecture to suggest that the subjects were considered and rejected as a site for the lodge because they were subject to crofting tenure. At that time the level of compensation to crofters in respect of resumption was generally very small and there was no right to any share in the development value. No doubt raising a resumption application would have meant some expense and brought about a certain level of uncertainty as to outcome. But had the Gorge Park been the most appropriate site, we do not think that it can be concluded that it would have been rejected simply because it was thought to be subject to crofting tenure. This line of argument does not add weight to our views one way or the other.

Secretary of State for Scotland v Kennedy (No.2) : Resumption for Road Widening

[284] Mr Smith thought it surprising that there was no resumption application for the road widening. As it happens, we have ascertained that there was indeed such an application. It was Inverness RN 10648 lodged on 19 May 1960. Had we considered that it might in any way have led to us reaching a different view to that which we have reached, then we would have sent copies to parties and sought their comments. We make it clear that we have not relied on it to reach our decision.

[285] The landlord sought to resume several areas of ground from the Galmore grazings and various other crofting subjects in the Achluachrach and Murlaggan townships. There had been negotiations with the County Council of Inverness for the purchase of the ground for widening of the Newtonmore to Spean Bridge road. The several areas of ground were said to form parts of individual crofts, of township common lands and of the Galmore Common Grazings in which the tenants of the various townships plus Bohenie were said to have shares.

[286] It was stated that the majority of the crofter respondents had agreed in writing to the proposals. Certain plots which were to be acquired and resumed were said to be parts of “Block A” in RN 10593, the forestry case which was, at the date of the roadworks application, continued for further procedure. We note that in replies lodged by the shareholders in the Galmore grazings, they asked that the new road be fenced each side for the whole of it length “through the Galmore ground”.

[287] The application very clearly sought to resume, inter alia, land along the north fringe of the subjects for the purpose of disponing that land to the local authority for road improvement. The application proceeded on the basis that land to both the north and south of the then route of the public road was subject to crofting tenure and the crofters sought compensation for loss of good grazing for the land which was to be taken.

[288] However, as it was specifically mentioned in process that there was an ongoing application (the forestry one), we are satisfied that those advising the Secretary of State had presented the application in the full knowledge of the issue raised as to the status of the subjects in the forestry case. Had we been viewing the application on its own and without reference to the forestry application, then it could no doubt have been taken as prima facie evidence that the subjects were understood by all to be part of the Galmore Grazing. That was not the case and we simply note the existence of the application for completeness, especially in light of Mr Smith’s remarks.

Government Support Schemes

[289] It is clear that in recent times the subjects have not been used for grazing by the shareholders for several years – for what are essentially practical and economical reasons. That of itself does not lead to loss of crofting status. It was implicit that Mrs MacLachlan held the view that occupancy by the shareholders could be vouched by the various claims and other returns which the shareholders made to the “Department”.

[290] We need not dwell on the matter, but what we think that the evidence of the lodging of various claims and agricultural returns shows for our purposes is that at the time when they were submitted to the relevant government department, there was an implicit assumption by the shareholders involved, or at least certain of their number, that the land was part of their common grazings or, if not that, it was land which they had some entitlement to use.

[291] Had we needed to say more, then it would have required further oral and documentary evidence in order for us to be able to establish the history, basis and nature of claims. As we understood the position, the present day claims are in respect of the subjects as part of the common grazings. We are aware that the present agricultural support schemes are founded on a mapping exercise which took place some twenty years ago. At best for Mrs MacLachlan, this line of evidence adds weight to her view that the Galmore crofters today, and for perhaps the last twenty years under the IACS regime in its various guises, have considered the subjects to be part of the grazing.

Decision

[292] On the basis of our analysis as discussed above, we find that under and in terms of section 53(1)(d) of the Crofters (Scotland) Act 1993, the area of land with which this application is concerned, namely the area known as The Gorge Park and shown delineated in red on the plan, Production 1, is part of the Galmore Common Grazings.