Decision of the Scottish Land Court

Cameron (Applicant) v Mackay and Others (Respondents)

Case reference SLC 19/15
before
Iain F Maclean, Deputy Chairman, and John A Smith
2 March 2016

Introduction

[1] The Applicant is the tenant of Croft 97, Portskerra, in the Parish of Farr, and County of Sutherland (“Croft 97”). In this Application, he craves an order under section 14 (4) of the Crofting Reform (Scotland) Act 2010 (“the 2010 Act”) modifying the entry (C241) in the Crofting Register for Croft 120, Portskerra (“Croft 120”) of which the Respondent is the Tenant. As the Respondent maintained in the face of this challenge that the boundaries of Croft 120 were correctly shown on the map forming part of the registration schedule made up by the Keeper which describes the land comprising Croft 120 for the purposes of the Crofting Register, the Court appointed a hearing by way of proof.

[2] Initially, a one day hearing was fixed for 20 October 2015 at the Melvich Hotel, Melvich, by Thurso, but when the parties, in conformity with Rule 33 of the Rules of the Scottish Land Court 2014, intimated to the Principal Clerk their lists of the witnesses they intended to call, with the Applicant’s list consisting of ten, and the Respondent’s of six, witnesses, it became abundantly clear to us that this initial allocation of Court time was woefully inadequate. At our initiative, the parties’ agents were contacted, and with their co-operation we were able to extend the original one day hearing into the following day, but even two days proved insufficient to finish taking the evidence, and a further two day hearing was scheduled for 15 and 16 December 2015, when we sat again at the same venue. The consequence of the parties’ initial underestimate of the duration of the hearing was that the Court, and the parties’ respective legal representatives, had to make two separate trips to the far North of Scotland, coming variously from Edinburgh, Aberdeen and Inverness, with all the additional cost (much of which ultimately will fall be borne by the parties) which that doubling of travelling time inescapably will have incurred.

[3] We narrate this sequence of events to make the point that, notwithstanding that Rule 33 provides only that lists of witnesses be intimated not later than two weeks before the date fixed for a hearing by way of proof, it is of great importance that parties’ legal representatives have given serious thought to the identities, and numbers, of the witnesses they may be minded to call at the earlier stage when a hearing is being fixed, so that the Court’s allocation of time is made on the basis of realistic estimates provided by the parties of how long it will take to complete the evidence and submissions. At the hearing and the continued hearing, the Applicant was represented by Robert Sutherland, Advocate, instructed by Messrs Macleod & MacCallum, Solicitors, Inverness, and the Respondent by Robert McDonald, Solicitor-advocate, of Messrs Stronachs, Solicitors, Aberdeen. We carried out an accompanied site inspection on the morning of 22 October 2015 and we revisited the site on our own after hearing parties’ closing submissions on the afternoon of 16 December 2015.

[4] The dispute between the parties centres upon an irregularly shaped area of ground situated above (i.e. on the west or hill side of) the upper stretch of the public road which runs in a loop around the adjoining villages of Melvich and Portskerra. The principal arable areas of the crofts in Melvich and Portskerra are located between the upper and lower stretches of the loop road and consist of narrow strips of land originally demarcated by “boltan” (from the Gaelic “balt”, or “bolt”, meaning border) stones but now for the most part divided by post and wire fencing. The arable strips pertaining respectively to Croft 120 and Croft 97 are adjacent to one another with no fence between the two, although we were given to understand that the original boltan stones remain in place.

[5] During the course of the hearing, Counsel for the Applicant attempted to lead evidence to show that the Respondent’s registration was incorrect not only in respect of the area above the upper stretch of the loop road but also in respect of the arable strip pertaining to Croft 120, because the land registered by the Respondent took in part of Croft 97’s arable strip. The attempt to pursue this line of evidence drew objection from the Solicitor-advocate for the Respondent, on the basis of lack of fair notice in the Applicant’s pleadings that the Applicant was challenging this aspect of the Respondent’s registration. We had considerable sympathy with this objection, in that – we must confess – it was only when, upon our arrival in Melvich the afternoon before the hearing commenced, we happened to observe the Applicant and his legal team walking about in the area between the upper and lower stretches of the loop road that we ourselves were alerted to the possibility that the Applicant’s challenge to the Respondent’s registration might extend to this area also.

[6] Before ruling on the objection, we afforded parties the opportunity to discuss their respective positions in relation to the location of the boundary between the two arable strips, from which it emerged firstly that the modification of the Respondent’s registration which the Applicant sought would involve her ceding to Croft 97 a strip of less than a yard in width from the arable strip registered by her, and secondly that she was quite content to do so. On the basis of the parties’ agreement to that effect, we were spared the necessity of ruling on the objection, and we were able to leave it to the parties to enter into a joint minute in appropriate terms to reflect the modification of the Respondent’s registration they had agreed, and to prepare a plan for us to submit to the Keeper identifying the location of the boundary between the two arable strips. It followed that whatever we went on to make of the evidence in relation to the areas which remained in dispute between the parties, the outcome of this Application would be the issue by us of an order that the entry in the Crofting Register relating to Croft 120 be modified in terms of section 14 (4) of the 2010 Act.

The area in dispute

[7] The dwelling-houses on or pertaining to Croft 120 and Croft 97 are approached by way of a tarmacadamed private access road that extends from the upper stretch of the loop road and passes between the dwelling-houses known as Mill House and Hoy View before crossing over a small burn, the water from which has been piped underneath the road, and culminating in a tarmacadamed parking/turning area situated below (i.e. to the east of) the dwelling-houses on or pertaining to Croft 120 and Croft 97. The dwelling-house on or pertaining to Croft 120 is situated to the north east of the dwelling-house on or pertaining to Croft 97. The two dwelling-houses stand gable ends on to the parking/turning area, with the dwelling-house on or pertaining to Croft 97 set further back from the parking/turning area than the dwelling-house on or pertaining to Croft 120. The two dwelling-houses, which are of traditional construction, appear to have been built to the same plan during the 1930s, and consist of two stories with projecting porches to their southerly elevations. There is adjoined to the west gable of the dwelling-house on or pertaining to Croft 97 a structure which was referred to in evidence by the Applicant’s witnesses as the shed and to the east gable a structure referred to by them in evidence as the barn, which may well pre-date the current dwelling-house itself. The east gable of the barn which adjoins the east gable of the dwelling-house on or pertaining to Croft 97 and the west gable of the dwelling-house on or pertaining to Croft 120 are almost in line with one another, standing a matter of approximately six metres apart.

[8] A dry-stone wall formerly projected from the end of the east gable of the barn, extending northwards towards the dwelling-house on or pertaining to Croft 120 and stopping just short of the curtilage thereof. A distinct and separate dry-stone retaining wall formerly ran around the west and north sides of the dwelling-house on or pertaining to Croft 120, leaving a narrow access passageway of about a single paving stone’s width around the west side of that dwelling-house. The dry-stone wall which formerly extended northwards from the end of the east gable of the barn which adjoins the dwelling-house on or pertaining to Croft 97 was broken down and removed in the 1950s to facilitate the connection of that dwelling-house to the mains water supply. More recently, the retaining wall around the west side of the dwelling-house on or pertaining to Croft 120 was dug out for drainage purposes, so that there is now a wider clearance at ground level around the west gable than originally obtained.

[9] The boundary of the area above the upper stretch of the loop road registered by the Respondent in the Crofting Register as part of Croft 120 follows for the most part the line of an old dry-stone wall which extended from the north west corner of the gable of the original dwelling-house on or pertaining to Croft 97, in a straight line, in a south westerly direction, up the hill known as “Foxhill” before turning north and then north east along the edge of what was formerly the Melvich & Portskerra Common Grazings (we understand that the area registered by the Respondent in the Crofting Register now backs on to apportionments) and then south across the parking/turning area situated to the east of the two dwelling-houses to a point in line with the northmost point of the gable of the barn adjoining the east gable of the dwelling-house on or pertaining to Croft 97. The boundary as registered by the Respondent then runs west to a point opposite the west wall of the front porch of the dwelling-house on or pertaining to Croft 120, where it cuts in towards that dwelling-house, according to the Respondent to allow a clearance “for access” of about a metre between the outer face of the wall of the dwelling-house on or pertaining to Croft 97 and the boundary of Croft 120, before cutting back again to a point just beyond the north west corner of the shed adjoining the west gable of the dwelling-house on or pertaining to Croft 97.

[10] It is convenient at this point to note that there was some conflict in the evidence as to whether the two storey dwelling-house on or pertaining to Croft 97 as it stands today was built up upon the existing walls of the original cottage on the site (pictured in the photograph lodged as Production 22A), or was when erected a completely new building, at least from ground level up. From our observations at the site inspections, we incline to the latter view, not least because it possesses a damp proof course similar to that of the dwelling-house on or pertaining to Croft 120, which would not have been a feature of the original cottage on the site, but little turns on this point because it was not disputed that the dwelling-house on or pertaining to Croft 97 and the buildings which adjoin it occupy more or less the same footprint as their predecessors.

[11] The old dry-stone wall had fallen into disrepair but was still largely extant by the early part of the twentieth century, as evidenced by what can be seen in the photograph lodged as Production 22 A, which was taken from an elevated position looking south east towards the rear of the dwelling-house on or pertaining to Croft 97, but today it is almost wholly turfed and grassed over, although the line thereof is still discernible on the ground. The balance of the photographic and other evidence before the Court was to the effect that before it fell into disrepair, there was no gate or gap at or about the north west corner of the gable of the dwelling-house on or pertaining to Croft 97 to afford the inhabitants at that time access to the area of ground it enclosed. Neither the previous nor the present dwelling-house on or pertaining to Croft 97 had a back door opening out onto the area of ground within the old dry-stone wall. The inhabitants of the dwelling-house on or pertaining to Croft 120 could obtain access thereto by passing through a gap between the end of the retaining dry-stone wall which ran around the west side of that dwelling-house and the end of the dry-stone wall which formerly projected from the end of the east gable of the barn attached to the east gable of the dwelling-house on or pertaining to Croft 97.

[12] The Applicant’s contention is that the area of ground enclosed by the old dry-stone wall properly forms part of Croft 97 and not Croft 120. He lodged as Production 31 a drawing prepared for him by the Torrance Partnership, Chartered Surveyors, Invergordon, bearing the date 7 July 2015, in which the area of ground within the old dry-stone wall which he contends properly forms part of Croft 97 is shown cross-hatched yellow. The part of the area of ground registered by the Respondent which the Applicant does not dispute forms part of Croft 120, and in respect of which he does not seek a modification, is outlined in red thereon. The area of ground within the old dry-stone wall extends, by our calculations, to a little over one third of an acre (approximately 0.14 hectares), is in part steeply pitched, and has minimal agricultural value, being suitable only for rough grazing.

[13] Neither party is ordinarily resident on his or her croft and it was clear on inspection that the area in dispute has not been put to agricultural or any other form of purposeful use for a number of years. In these circumstances, we can only speculate that its significance to the parties, putting aside any sentimental associations which it may have for them, lies in its proximity to the dwelling-houses on or pertaining to the crofts tenanted by them, both of which back directly onto it. The Applicant further argues that the greater part of the parking/turning area to the east of the two dwelling-houses which the Respondent has included in her registration, is not part of Croft 120, but instead is “mutual” to the two crofts. He lodged as Production 19 a further copy of the drawing prepared by the Torrance Partnership, Chartered Surveyors, Invergordon bearing the date 7 July 2015 marked up to show cross-hatched in pink that part of the parking/turning area which he contends is “mutual” to the two crofts.

The evidential basis of the Applicant’s challenge

[14] As the evidence emerged at the hearing, it became clear that the Applicant’s case that the area in dispute forms part of Croft 97 and not Croft 120 rested on two principal supports; namely (i) the contents of an annotated photolithographed enlargement of the 1873 Ordnance Survey Sheet (O.S., X. REAY) Port Skerry-Melvich, which was lodged by him as Production 16 (“the 1873 OS Sheet”), and (ii) oral testimony from his witnesses of past uses of the area in dispute by his predecessors as Tenant of Croft 97. Counsel for the Applicant sought also, in his closing submissions, to derive support from the contents of a photocopy of a later (FIRST EDITION 1906) unannotated OS Map (SUTHERLAND SHEET X. 8.) (“the 1906 OS Map”), which he lodged as Production 17, and from a photocopy of a page of what appears to be a rent book, lodged as Production 34, but for reasons which we shall go on to explain, we do not consider that either of these productions materially advanced the Applicant’s case.

[15] The 1873 OS Sheet bears what appear to be handwritten annotations in red ink and in pencil. The Applicant testified that he had obtained it in this form from the National Library of Scotland, but no more specific evidence as to its provenance was provided. In consequence, we do not know by whom these handwritten annotations were appended, when they were appended, or for what ultimate purpose they were appended. The annotations largely, but not exclusively, consist of numbers inserted within identifiable land parcels marked out by the physical features on the ground recorded by OS or as drawn on to the 1873 OS Sheet in red ink by the annotator or annotators. It seems clear that the handwritten numbers which have been inserted into the various land parcels are croft numbers and it seems reasonable to infer that they represent an attempt to record which land parcels formed part of which crofts. The 1873 OS Sheet depicted the buildings on the ground at the time the area was surveyed, and the annotations also seek to label the buildings pertaining to a particular croft with that croft’s number. It is apparent on the face of the 1873 OS Sheet that some of the information recorded thereon was at best provisional; there are, for example, entries for particular land parcels in pencil such as “116 or 115” or “153 or 148” which suggests that the annotator or annotators did not have access to definitive records of the boundaries and extents of all of the individual croft holdings.

[16] The line of the old dry-stone wall around the area now in dispute is marked on the 1873 OS Sheet. Within the area enclosed thereby, the number “97” has been handwritten in red ink. Two dark shaded rectangles representing buildings are also depicted, their situation appearing to correspond at least approximately with the situation of the dwelling-houses and ancillary buildings on or pertaining to Croft 120 and Croft 97 as they have existed from time to time over the ensuing years and as they can be seen in the various historic photographs which were lodged as productions. There is handwritten in pencil underneath the northerly of the two buildings depicted the number “120”. A pencil line has been extended from the southerly of the two buildings to the number “97”, also handwritten in pencil, preceded by a symbol which may be a question mark.

[17] The presence of the number “97”, handwritten in red ink, within the line of the old dry-stone wall, is, we think it is not unfair to say, the cornerstone of the Applicant’s case that the area in dispute properly forms part of Croft 97. The lack of provenance for those annotations poses a significant difficulty for the Applicant in inviting us to attach significant weight thereto, and our impression of the reliability of the annotations to the 1873 OS Sheet was not enhanced when, in the course of cross-examination, Counsel for the Applicant, presumably in the hope that the answer he elicited would afford confirmation of their general accuracy, invited the Respondent’s witness James Mackay to confirm that they correctly represented his own holdings, and he promptly spotted an error in respect of the identification of Croft 60, of which he was formerly the tenant, which had been wrongly labelled thereon as “86”. There is also the problem for the Applicant that the annotated copy of the 1873 OS Sheet fails to reflect the extent of Croft 97 as it has been occupied by the Applicant and his predecessors as tenant for a significant part of the twentieth century.

[18] If the contents of the 1873 OS Sheet are to be accepted as an accurate rendering of the boundaries and extents of Croft 120 and Croft 97, it would follow that Croft 97 had no land at all to the south of the dwelling-house and ancillary buildings on or pertaining thereto. However, we heard evidence that the Applicant’s grandparents Benjamin and Mrs Helen (known as “Ella”) Cameron had created a front garden for their dwelling-house by enclosing a small area of ground with a brick wall and had fenced off and cultivated a much admired vegetable patch also within the area to the south of the dwelling-house. The land lying immediately to the south of the area in dispute is now enclosed with a post and wire fence and occupied by the Applicant ostensibly as part of Croft 97. The Applicant is thus, in effect, in the position of asking us to accept as accurate the contents of the annotations to the 1873 OS Sheet to the extent that they may be interpreted as confirming that the area in dispute forms part of Croft 97, but to reject them so far as they omit to show the similarly sized area of ground lying immediately to the south thereof as being part of Croft 97, in conflict with the principle of approbate and reprobate. The Applicant, under cross-examination, was driven to concede that the land lying immediately to the south of the area in dispute could well be common grazing land, which the tenants of Croft 97 from time to time had occupied because no one else was using it, but this concession seemed to us to be very much an afterthought on his part, conflicting starkly with both the contents of his own productions and his own testimony at the outset of his examination-in-chief, when he spoke to his lifelong awareness of the boundaries of Croft 97 as including not only the area in dispute but also the land to the west and south of the dwelling-house on or pertaining to Croft 97 immediately to the south of the area in dispute.

[19] The contents of 1906 OS Map, which shows only the physical features on the ground as at that date, seem to us to be entirely neutral in relation to the task of establishing whether the area in dispute forms part of Croft 97 or of Croft 120. The stated source of the photocopied page of what appears to be a rent book founded on by the Applicant was a school project on crofting some thirty years ago. The Applicant could shed no light on where the schoolchildren found it. Its significance, so far as the Applicant was concerned, was that the handwritten description of Croft 97 in an entry dated 1889 refers to “Land”, “House & Garden on W. side of Road” and “Outrun behind House.” In the column of the rental book recording the estimated acreages of the constituent parts of the holding, there is a symbol rather than a numeral, which symbol may be a question-mark; neither Counsel for the Applicant nor the Solicitor-advocate for the Respondent had any more plausible suggestion as to what it might represent.

[20] Leaving aside any concern about the ultimate provenance of this photocopy, it might be thought that this entry recording that Croft 97 included an area of outrun behind the dwelling-house on or pertaining thereto provided some degree of support for the Applicant’s position that the area in dispute forms part of Croft 97. On reflection, however, we have come to the conclusion that it does not necessarily do so. Whilst in one sense, the area in dispute does lie “behind House” in that the dwelling-house on or pertaining to Croft 97 faces south and the area in dispute is situated to the rear thereof, we think that the topography of the locus, with that dwelling-house being situated part way up the incline known as “Foxhill” with the higher part of the hill rising up beyond it, makes it as or more likely that the “outrun behind House” being referred to was the area lying immediately south of the area in dispute, as shown cross-hatched in green on Production 31, which the Applicant and his predecessors as Tenant have occupied as part of Croft 97.

[21] We heard oral testimony from the Applicant, his aunt, Mrs Dorothy MacCarthey, a Portskerra neighbour, Mrs Elizabeth Mackay, and her daughter Mrs Rosemary Cameron, all of whom spoke to purported uses of the area in dispute by the tenants from time to time of Croft 97 or persons connected with them in the post-Second World War period, and for the most part from the mid-1960s onwards. The uses spoken to by the Applicant’s witnesses were essentially threefold: as an area within which children played, as grazing for sheep and for drying clothes. Counsel for the Applicant adduced from the Applicant’s aunt, Mrs Dorothy MacCarthey, the recollection that, in her earlier years, her mother had kept hens, but given that the henhouse in which those hens were kept was situated upon the area lying immediately to the south of the area in dispute, as shown cross-hatched green on Production 31, and there was nothing to stop them from wandering into the area in dispute, or to keep them there having done so, we do not consider that the presence of hens belonging to the Applicant’s grandmother on the area in dispute is a factor of any material assistance to the Applicant in establishing his claim that it formed, and forms, part of Croft 97.

[22] In relation to the evidence of children playing within that area, whilst we do not doubt that the Applicant, who was brought up by his grandparents Benjamin and Mrs Ella Cameron at Croft 97, and his friends may in childhood have made sporadic incursions into the enclosed area, we are not inclined to attach much weight thereto in the determination of the issue of to which croft it belonged, any more than to the evidence that Mrs Rosemary Cameron in her youth on occasion jumped her pony in and out of it. The activities within the enclosed area spoken to by these witnesses occurred during a period when the dwelling-house on or pertaining to Croft 120 was either occupied by the Respondent’s elderly grandfather, Geordie Mackintosh, or, after he moved out of the dwelling-house on or pertaining thereto shortly before his death in or about 1974, not occupied at all. The Respondent’s mother, Mrs Dolina (known as “Dolly”) Mackay, who gave evidence on her daughter’s behalf, expressed the view that such incursions would not have taken place, because neighbours in a crofting community simply did not enter into each other’s crofts, but the Court had no reason to disbelieve that evidence. We suspect that had Mrs Dolly Mackay herself been present when these incursions took place, she would have had something to say about it, as she doubtless did when the Applicant, in his youth, broke two of the windows of the dwelling-house on or pertaining to Croft 120 when playing football in or near the now tarmacadamed parking/turning area. More fundamentally, however, what is important in this context is not the mere fact of use of the area in dispute, but the legal basis of such use, and we are not persuaded that the fact that children may have played on a small area of otherwise unused ground in the 1970s in the absence of anyone there to dissuade them from doing so weighs much in the balance in that context.

[23] So far as the use of the area in dispute for sheep grazing purposes is concerned, the Applicant’s witnesses emphasised that, at least in the post-Second World War period, the Applicant’s family had kept sheep but the Respondent’s family had not. Portskerra was an open township until the late 1980s, which meant the sheep of the various crofters in the township would spend the Summer months out on the hill common grazings, but during the Winter months would be free to roam across all the unfenced in-bye croft land without restriction. In our experience, what this would mean in practice is that during those months, the sheep of the locality would forage widely in search of food, and given that the area enclosed by the old dry-stone wall had not been stockproof for decades, we are sceptical that the presence of sheep within that area from time to time tells us anything very useful as to which croft the area in dispute belonged.

[24] We were also somewhat sceptical of the evidence provided by Mrs Dorothy MacCarthey that the Cameron sheep, when brought down off the common grazings, would be driven through the area in dispute. It seemed to us to be implausible firstly that the Cameron sheep would be taken off the common grazings separately from the rest of the sheep on the common grazings with which they would have been intermingled, and secondly that even if that did occur, that this is the route which would have been taken, particularly if, as she contended, their destination was a holding pen at the top of the arable strip pertaining to Croft 97, located further north along the upper stretch of the loop road. It is difficult to conceive of why the Camerons would have driven their sheep over, and through the area enclosed by, the old dry-stone wall, when the main access track (or right of way, as Mrs Dolly Mackay referred to it), to and from the common grazings, which can be seen on the left hand side of the photograph lodged as Production 22, lay just beyond and ran alongside the old dry-stone wall which formed the northern boundary of the enclosed area. Mrs Elizabeth Mackay had earlier spoken to all the crofters taking their sheep off the common grazings for dipping/clipping to the Bighouse farm and Mrs Dolly Mackay testified that the sheep were taken off the common grazings by the latter route.

The washing line/drying area evidence

[25] Perhaps the most significant chapter of evidence relating to use of the area in dispute concerned the presence of washing lines/drying areas thereon. We heard evidence about four different washing lines in total, and there ultimately was no dispute as to the locations of those four washing lines. There was a small washing line situated to the south of the dwelling-house on or pertaining to Croft 97, beside Benjamin Cameron’s vegetable garden, which was used by Mrs Ella Cameron, although there was a conflict in the evidence as to over what period it was so used by her. There was a small washing line a short distance beyond the west gable of the dwelling-house on or pertaining to Croft 120 which was used by the family at Croft 120. There was a conflict in the evidence about the period of use of this washing line, the position of the Applicant being that it was always the principal washing line and clothes drying area for Croft 120, whereas Mrs Dolly Mackay gave evidence that it was merely a supplementary washing line, first put up for her convenience for the drying of nappies when her daughter, the Respondent (born in 1963), was a baby. The Respondent herself in more recent times had established a washing line upon an area to the east of the dwelling-house on or pertaining to Croft 120 which served as the drying area therefor. The washing line, the use of which principally was in controversy, extended across the area in dispute a short distance beyond the west gable of the shed attached to the west gable of the dwelling-house on or pertaining to Croft 97 (“the top washing line”).

[26] It was the Applicant’s position in his pleadings that the top washing line was used by his grandmother “from at least 1966 until the Applicant’s grandmother Helen Cameron fell and cut her leg in about 1980, following which the drying area for Croft 97 was moved to the said location beside the vegetable garden.” It falls to be noted, then, that the Applicant came to Court offering to prove no more than use by the residents of the dwelling-house on or pertaining to Croft 97 of the top washing line subsequent to 1966.

[27] The Applicant’s aunt, Mrs Dorothy MacCarthey, born in 1951, and brought up in the dwelling-house on or pertaining to Croft 97, spoke to having always understood the area in dispute to be part of Croft 97, and to her mother having used the top washing line, but her evidence as to particular uses thereof during her childhood and teenage years was couched in somewhat vague and general terms, and we were not convinced that it was in every respect wholly reliable. Mrs Dorothy MacCarthey’s demeanour, as we observed it, at the accompanied site inspection, whilst she was in the witness box and when sitting in the public benches after her own evidence had been heard, was not that of a disinterested witness, but of someone almost as heavily invested in the outcome of the Application as her nephew, the Applicant, himself, and we formed the view that she was, under cross-examination, consciously trying to avoid saying anything that she perceived might be construed as unhelpful to his position. Whilst both Mrs Dorothy MacCarthey and Mrs Elizabeth Mackay spoke to their belief or understanding that the area in dispute was part of Croft 97 (“I just looked at it as being Stephen’s family’s land”, as the latter put it) it was our impression that neither of those witnesses, or those like the Applicant himself and Mrs Rosemary Cameron who derived knowledge through them, had any solid factual basis for this belief or understanding beyond their own observations of minor activities taking place thereon over a period when the tenants of Croft 120 were either absent therefrom or at least making no competing use of the same.

The Respondent’s evidence

[28] The Respondent’s position in her pleadings, supported by the evidence given by her mother, was that the top washing line was formerly the principal washing line for Croft 120. It was situated so far up the hill to be out of the shade of the dwelling-house on or pertaining to Croft 97. Mrs Dolly Mackay, born in 1934, had gone to live in the dwelling-house pertaining to Croft 120 at the age of 5 upon the death of her own mother and she was brought up there by her paternal grandmother, Catherine Macintosh (known as “Kate”). Kate Macintosh had herself been widowed in or about 1935 when her husband suffered a heart attack whilst carrying stones from the shore to use in the building of the new dwelling-house on or pertaining to Croft 120. She recalled her grandmother keeping two or three sheep which would be taken in and tethered within the area in dispute at lambing time. The family maintained a “tattie pit” within the area in dispute, situated on the same level as the dwelling-house on or pertaining to Croft 97, to store the potatoes they grew on Croft 120’s arable strip, and there was also within the area in dispute a little hut inside a netted run for when the hens had chicks, to protect the chicks from the seagulls, although her grandmother’s main henhouse was situated on the common grazings, outwith the area in dispute, upon an area locally known as “Kate’s Hill”, to keep the hens away from the house door. Kate Macintosh died suddenly in 1954, having remained active up to the time of the death, after which the Macintosh family’s use of the area in dispute to all intents and purposes ceased.

[29] Mrs Dolly Mackay recalled Benjamin Cameron asking her father, Geordie Macintosh, for permission to break down the dry-stone wall which formerly extended northwards from the end of the east gable of the barn which adjoins the dwelling-house on or pertaining to Croft 97 to permit the pipe to be laid when the water first went in to the Camerons’ kitchen, which she reckoned took place in the early 1950s, because the Macintosh family were connected to the mains supply in the late 1950s and the Camerons got the water in before them. She resided in the dwelling-house on or pertaining to Croft 120 with her husband and daughter, the Respondent, until 1966, when the family moved to the croft at 125 Portskerra. Thereafter, her widowed father continued to reside in the dwelling-house on or pertaining to Croft 120, although spending his days in his daughter’s house at 125 Portskerra, until shortly before his death in 1974. It was some time after his death that, on her account, Mrs Dolly Mackay was asked by Mrs Ella Cameron on the way home from church if she could use the top washing line, to which request Mrs Dolly Mackay had “of course” assented. We do not consider that there is any real likelihood that Mrs Dolly Mackay could have been mistaken in her recollection of this exchange, and we found her account of it entirely credible. In any event, the general tenor of her evidence about the washing lines/drying greens was to receive powerful corroboration from the Respondent’s final witness, James Mackay.

[30] James Mackay was working as a joiner and building contractor in the locality in the early 1960s. He had known both of the families involved in this litigation all his life and there was no suggestion made in either the course of his cross-examination or during the Applicant’s closing submissions that he was to any extent parti pris in this dispute. He spoke to attending at the dwelling-house on or pertaining to Croft 97 in the winter of 1962/63 to provide a quotation for carrying out some grant assisted joinery work to accommodate the installation of an upstairs bathroom into the building and other improvements. Whilst going around the front of the dwelling-house, he recalled Mrs Ella Cameron mentioning the washing she had hanging out on the line, to which he, looking out at the small washing line to the front of the dwelling-house on or pertaining to Croft 97 on which clothes were hanging, asked, “Is that all the clothes line you have?” Her reply was: “That’s all the garden I have and that‘s all the clothes line I have.”

[31] They then went on around the dwelling-house to the barn attached to the east gable (James Mackay referred to it in evidence as “the store”) where he took out a ladder to enable him to go up to inspect the window on the first floor for repairs. He noticed the top washing line and asked her “what clothes line is that?”, to which she replied that it belonged “to them next door.” She went on to tell him that she had no ground to the back of her house, and that their [i.e. the next door neighbours’] ground “comes right up to the back of my house”. Whilst James Mackay was up on the ladder inspecting the first floor window, Mrs Ella Cameron asked him where the waste pipe from the new upstairs toilet would be going. He explained that the plumbers would have to take a pipe down the side of the wall and lay it into the ground, where it would then come out about a yard and then go straight down the side of her house to connect to the new mains sewer which was scheduled for the following year. He related that on hearing this, Mrs Ella Cameron told him that in that case, she would have to get the permission of Geordie Macintosh, the tenant of Croft 120, to install the pipe, because that was his land. James Mackay did not know whether such a pipe was later installed because that, he emphasised, would have been a matter for the plumber. On this basis, James Mackay, who had himself served on the Melvich & Portskerra Grazings Committee from the early 1960s until he resigned therefrom whilst in the position of Chairman for health reasons in the 1980s, believed the area in dispute to be part of Croft 120.

[32] James Mackay had brought along to Court in his pocket a reduced photocopy of a historic OS Map of Portskerra and Melvich which he had obtained from the Department of Agriculture office in Thurso, taken from a 4 feet square original, to work from during his time on the Grazings Committee. His version had croft numbers marked on for the areas within and below the loop road, but not for any areas above the road. However, no attempt was made by either party to have him produce this map, and so we need say no more about it herein. Under cross-examination, he refuted the Applicant’s suggestion that the small washing line in front of the dwelling-house on or pertaining to Croft 97 was not put in place there until 1980. He also recalled the presence of a second washing line just beyond the west gable of the dwelling-house on or pertaining to Croft 120 after the Respondent’s birth, having seen her mother hanging items thereon on several occasions whilst he was visiting the Respondent’s father, who had to do with the District Council, in connection with the work he was getting from them. Counsel for the Applicant, confronted with this evidence, was left with little choice, in cross-examination, but to embark on an attempt to shake James Mackay’s testimony by firstly questioning the reliability of his memory, which proved to be a fruitless exercise, and then by expressing scepticism as to the likelihood of him being able, at this distance of time, to recollect so precisely the contents of a casual conversation more than half a century ago. This was, in essence, an attempt to challenge James Mackay’s credibility, but it was hampered by the lack of any semblance of a plausible motive for him to opt to lie on oath about such matters, and Counsel for the Applicant, in our view wisely, did not seek to press that point too hard. We were much impressed by the clarity and conviction of James Mackay’s evidence.

Decision

[33] It seemed to us, having heard all the evidence, that a coherent picture had emerged over the course of the proof of a situation in which the area in dispute’s origins as part of Croft 120 were lost sight of over the course of the period from after the death of the Respondent’s great grandmother Kate Macintosh in 1954. Whilst the Applicant could point to the existence of a general understanding on the part of some of his relatives and neighbours in more recent times that the area in dispute formed part of Croft 97 rather than Croft 120, it was our impression that this understanding was based on little more than their observations of certain very limited uses thereof by the Applicant’s family over a period of time when the Respondent’s family were not themselves making use of it.

[34] We suspect also that the perception of those witnesses that the area in dispute formed part of Croft 97 may have been coloured in those more recent times by the contents of the 1873 OS Sheet, in so far as it purported to show the area in dispute as forming part of Croft 97. A copy thereof seems to have been before the Melvich & Portskerra Grazings Committee in 2005 when the Applicant raised with them the issue of whether the area in dispute was part of Croft 97 or Croft 120. At a meeting held on 7 November 2005, at which both Mrs Elizabeth Mackay and Mrs Rosemary Cameron were in attendance, the Grazings Committee discussed the issue, and subsequently issued to the Applicant a letter dated 17 November 2005 in which it purported to adjudicate thereon, notwithstanding that, as the Solicitor-advocate for the Respondent pointed out in cross-examination of those witnesses, it had no formal locus to do so and it did not trouble to canvass the views of the Respondent, herself a grazings shareholder like the Applicant, before so doing. We do not, in these circumstances, consider the evidence adduced about these proceedings before the Grazings Committee to form a distinct and separate strand of support for the Applicant’s position.

[35] Against the evidence, itself quite slight, led by the Applicant as to use of the area in dispute by the Applicant’s family in the modern era, we had credible evidence from both Mrs Dolly Mackay and James Mackay, which we accepted, that the Applicant’s own grandparents did not themselves consider it to form part of their croft, as evidenced by the facts that: (i) Benjamin Cameron asked Geordie Macintosh for permission to take down the wall which formerly extended northwards from the end of the east gable of the barn which adjoins the dwelling-house on or pertaining to Croft 97 to permit the introduction of a piped water supply into the kitchen thereof during the 1950s; (ii) Mrs Ella Cameron told James Mackay in or about 1962/63, when the installation of an upstairs bathroom was in contemplation, that she had no land to the back of her house and would have to ask Geordie Macintosh’s permission to lay a pipe through the area in dispute; and (iii) Mrs Ella Cameron asked Mrs Dolly Mackay at some date subsequent to 1974 for permission to use the top washing line within the area in dispute.

[36] It is notable that, whilst the washing line near to the west gable of the dwelling-house on or pertaining to Croft 120 was, on the Applicant’s own account, situated on part of Croft 97, it was not disputed by any of the Applicant’s witnesses that the tenants of Croft 120 were entitled to use it, or suggested by any of them that the tenants of Croft 120 had sought or required to seek permission from the tenants of Croft 97 to do so. The relative paucity of evidence of use by the Applicant’s family of the area in dispute over time may be contrasted with the much more substantial evidence of use by them of the area lying immediately to the south of the area in dispute, which contained their walled front garden, a vegetable patch, a washing line and a hen house. The lay-out of the walls and buildings at the locus also seem to us to militate against the Applicant’s position that the area in dispute formed part of Croft 97, in that when the old dry-stone wall around the area in dispute was still intact, the only means by which the inhabitants of the dwelling-house on or pertaining to Croft 97 could have gained access thereto would have been by going around the end of the wall which formerly extended northwards from the end of the east gable of the barn which adjoins the dwelling-house on or pertaining to Croft 97, which would have taken them practically under the eaves of the dwelling-house on or pertaining to Croft 120.

The parking/turning area

[37] It follows from all of the above that we reject the Applicant’s general argument that the area in dispute formed, and forms, part of Croft 97. There remains however to be resolved the issue of whether that part of the parking/turning area to the east of the two dwelling-houses which was included within the Respondent’s registration does indeed form part of Croft 120 or is, as contended for by the Applicant, “mutual” to the two crofts. The Applicant lodged in process as Production 7 a printed-off email sent by him to his solicitors on 16 March 2015 containing the text of a message sent to him from his iPad that same day by Mike Ashmole, chairman of AHG Group Ltd., the Landlords of the two crofts, in which the author stated that “I can confirm that the solum of the access to crofts 97 and 120 belongs to the Estate, and therefore access or prevention of access can not be granted by a third party.” Although his name appeared on the List of Witnesses lodged by the Applicant in advance of the hearing, Mr Ashmole was not called to give evidence, but in any case, the contents of his email do not assist the Applicant here as the issue for the Court is neither that of the ownership of the solum of the access to Croft 97 and Croft 120 nor the explication and regulation of rights of access over that land.

[38] The 1906 OS Map shows an access track leading first up to the dwellinghouse and ancillary buildings on or pertaining to Croft 97 and then on round to the dwelling-house and ancillary buildings on or pertaining to Croft 120. What looks to be the earliest in period of the photographs of the locus which have been lodged in process by the parties (the Applicant’s Production 25, thought to date from about 1900), is a photograph which shows those dwelling-houses and the approach to them from the south. The access track can be seen in the foreground of the photograph and its route can be followed as it passes between two large peat-stacks and on up to the dwelling-houses and ancillary buildings themselves. This would have been an unfinished cart track at that time.

[39] The evidence was that the Macintosh family at Croft 120 had a car and other motor vehicles (including a lorry) from the 1950s into the 1970s. The Camerons at Croft 97 did not have a car during this period, but they did have visitors with cars. It used to be possible to take a vehicle right up to the front door of the dwelling-house on or pertaining to Croft 97, as can be done in relation to the dwelling-house on or pertaining to Croft 120 to this day, but this ceased to be possible when Benjamin Cameron erected the wall to create a front garden. The Macintosh family vehicles and other vehicles which visited either of the two dwelling-houses would be parked in the area in front of the east gables of the two dwelling-houses wherever there was space to do so. This area was tarred through the intervention of Mrs Dolly Mackay in the early to mid-1980s. The access track from the upper stretch of the loop road to the burn having been tarred by the Council at the behest of the lady who lived in Mill House, Mrs Dolly Mackay contacted the Council to inquire why the tarring had not continued on over the burn to the two dwelling-houses which lay beyond. The Council returned and tarred the remaining stretch of the access track and the area in front of the east gables of the two dwelling-houses which previously had been flattened by the passage of vehicle traffic.

[40] There was no evidence before the Court to enable us to determine whether the access track as it is depicted in the 1906 OS Map (it is not shown on the 1873 OS Sheet) was created over croft land, over common grazings land or otherwise. What is clear is that the tarred parking/turning area as it exists today extends over an area different from that of the access track as it is depicted in the 1906 OS Map. The only direct evidence we heard as to the location of the southern boundary of the area in dispute in the vicinity of the parking/turning area came from Mrs Dolly Mackay, who stated that her late father told her that it ran down in a straight line from the northmost point of the end (i.e. the east gable) of the barn attached to the east gable of the dwelling-house on or pertaining to Croft 97 to meet the eastern boundary of the area in dispute, the line of which can be established by reference to what remains to be seen of the eastern section of the old dry-stone wall. In the absence of any contradictor, we would have simply accepted this evidence, but the practical issue we face is that the Respondent’s registration of Croft 120 in the Crofting Register does not reflect it, taking in as it does small triangle of land to the south of that line. This is the second aspect of the Respondent’s registration of the area in dispute which was not supported by her own witnesses, the other being her allowance of a one metre clearance around the outer face of the wall of the dwelling-house on or pertaining to Croft 97 when the historic evidence was to the effect that Croft 97 had no land at all beyond that wall.

Credibility and reliability

[41] We have indicated in the course of our commentary on the evidence our views on the credibility and reliability of the principal witnesses in this case, but we have not hitherto said anything about the evidence of the parties themselves. The Respondent was clearly extremely nervous in the witness box, and whilst nothing she said afforded us any reason to doubt either her credibility or her reliability, her evidence was of little practical assistance because, as she made clear, most of it, so far as relevant, had come to her at second hand from her mother, Mrs Dolly Mackay, who herself gave evidence. In his closing submissions, the Solicitor-advocate for the Respondent reminded the Court of the difficulty there had been in getting the Applicant to give a straight answer to a straight question. In a purely literal sense, that criticism of the Applicant’s evidence was well-founded; the answers given by the Applicant only infrequently bore any obvious relation to the questions being put to him. However, we ultimately were of opinion that in exhibiting this trait, the Applicant was not attempting deliberately to dissemble and was, for the most part, doing his best to assist the Court: it was notable that his failings in this regard were every bit as pronounced in the course of his evidence-in-chief as under cross-examination, to the sometimes evident frustration of his own legal representatives. Our impression was that the Applicant was so persuaded by the results of his researches into the extent and boundaries of the two crofts, and had so much that he wanted to impart in order to persuade the Court that his interpretation of that material was correct, that he was prone not to listen carefully to the questions being put to him, and to make rhetorical speeches instead of addressing the specific points raised.

[42] We did not, however, accept the Applicant’s account of the contents of a telephone conversation he had with Mrs Dolly Mackay in or about 2004/5. As it came to be put to Mrs Dolly Mackay in cross-examination, the Applicant’s position was that he had telephoned her to obtain her daughter’s phone number with a view to telling the Respondent, merely as a courtesy, that he was intending to build an extension to the dwelling-house on or pertaining to Croft 97. Mrs Dolly Mackay’s evidence was that he had telephoned her out of the blue to inquire whose the land behind his house was, in response to which she asked him why he wanted to know. He told her that he was wanting to extend out the back of his house to put on a new kitchen (i.e. extending into the area in dispute). Mrs Dolly Mackay replied that the land had been hers, and was now her daughter’s, and that if he wanted to build a kitchen, the Applicant had plenty of land of his own upon which to do so.

[43] The two accounts of that telephone conversation are not reconcilable, and in the face of that clash of evidence, for what it is worth, we have no hesitation in preferring Mrs Dolly Mackay’s account as being the far more credible and reliable. The Applicant was clearly anxious to convey to the Court the impression that he had always considered the area in dispute to be part of Croft 97, but it seems to us to be significant that it was after this telephone conversation that he asked Donnie Mackay, late husband of Mrs Elizabeth Mackay and the father of Mrs Rosemary Cameron, to “clarify” for him what were the boundaries of Croft 97 and wrote his letter to the Grazings Committee, which suggests to us that he felt the need at that time to buttress his claim that the area in dispute formed part of Croft 97. We are sceptical that the Applicant would have gone to the trouble of telephoning Mrs Dolly Mackay, who had not seen him since he was 10 or 11 years old, to obtain the telephone number of her daughter, merely to inform her as a courtesy that he was proposing to build an extension to his house upon land in which, on his version of events, she had no interest. That said, however, our principal difficulty with the Applicant’s evidence, taken as a whole, was that it consisted less of direct and relevant factual testimony and more of his own opinions as to how the sundry documents, maps and photographs before the Court fell to be interpreted.

The legislation

[44] Section 14 of the 2010 Act (Challenge to first registration) provides, so far as is, or may be, relevant hereto, that:

“(1) Subject to subsection (3), any person to whom notice is given under section 12 (1), or who otherwise is aggrieved by the registration of the croft to which the notice relates, may apply before the end of the period mentioned in section 12 (5) to the Land Court for an order under subsection (4)(a) or (b)

(4) On receipt of an application under subsection (1), the Court may—

(a) make an order that the entry in the register relating to the croft be removed;

(b) make an order that the entry in the register relating to the croft be modified;

(c) make no order.

(5) Where subsection (6) applies, the Court must, if making an order such as is mentioned in subsection (4)(b), declare the boundary of the croft to be that which, in all the circumstances, it considers appropriate.

(6) This subsection applies where—

(a) the application challenging the registration raises a question as to the boundaries of the croft; and

(b) the evidence available to the Court is insufficient to enable any boundary to be clearly determined.

(7) Where the Court makes an order under subsection (4)(a) or (b), the Keeper must make such amendment to the registration schedule of the croft and to the register as is necessary.”

[45] We broached with parties’ legal representatives in the course of their closing submissions the question of onus; as the party challenging the registration in the Crofting Register, was it for the Applicant to discharge the onus of proving that the boundaries of Croft 120 as registered by the Respondent were wrong? Counsel for the Applicant argued that under the procedures for registration of crofts in the Crofting Register, in contrast with the situation which prevails under registration of title in the Land Register, the merits of the application for registration are not subjected to detailed scrutiny; the Keeper will register provided that the application complies with certain basic prescribed formalities. In such circumstances, it would be unfair if the party who achieves first place in a “race to the Register” gained any advantage thereby. We are inclined to think that Counsel for the Applicant may be correct in this analysis, but, as it was put by the Divisional Court in Macnab v. Castle Leod Maintenance Trust Trustees (RN SLC/133/12 – Order of 25 August 2014) at paragraph [282], “once the evidence is out, onus generally tends to be of little moment”, and that was very much the case here. Accordingly, we would reserve our opinion on this issue pending hearing full submissions thereon.

Disposal

[46] Albeit that this is a case in which the application challenging the registration raises a question as to the boundaries of a croft, we are satisfied that the evidence available to the Court is sufficient to enable those boundaries to be clearly determined. Section 14 (6) of the 2010 Act accordingly does not apply.

[47] The parties having agreed the location of the boundary between their two crofts’ respective arable strips, we shall order the Keeper, in terms of section 14 (4)(b) of the 2010 Act, to modify the entry (C241) in the Crofting Register for Croft 120 in conformity with their agreement, which is embodied in the Joint Minute, with plan annexed and signed as relative thereto, received by us on 27 January 2016, which is lodged in process as production 36.

[48] We shall further order the Keeper to modify the entry in the Crofting Register for Croft 120 to remove therefrom the small triangle of land situated south of a line running from the northmost point of the end of the barn attached to the east gable of the dwelling-house on or pertaining to Croft 97 to the eastern boundary of the area registered by the Respondent west of the public road. We have endeavoured to depict the area which falls to be removed from the Respondent’s registration by marking up a copy of part of production 12, the plan submitted by her for the purposes of first registration. The area to be removed is shown outlined in black and coloured orange on the copy, which is lodged in process as production 37 and is signed as relative to our Order.

[49] Quoad ultra, we shall dismiss the Application. In conformity with our usual practice, we shall allow parties 21 days from the date of intimation of our Order to lodge written motions and submissions on expenses.