Decision of the Scottish Land Court

Mackinnon (Applicant) v O’Connor (Respondent)

Case reference SLC 67/14
before
Lord Minginish, Chairman, and John A Smith
13 March 2015

Introduction

[1] This is the third time that this court has been asked to fix the boundaries of croft 7 Coilleag, Eriskay.

[2] The first time was in 1937 when the court was asked to determine the boundaries between croft 7 and crofts 4 and 5, 6 and 8 (RN6308). It did so by means of stones infixed into the ground at certain points but it did not produce a map showing where the boundaries were and the judgment contains no narrative which would allow them to be identified on the ground almost 80 years later. All the order made by the court at that time says is that the court “FIX and DETERMINE that the boundaries between the Applicant’s holding (i.e. croft 7) and the holdings of the Respondents (i.e. crofts 4 and 5, 6 and 8) are as marked off on the ground in the presence of parties or their representatives at the court’s inspection, stones being infixed in the ground at certain points to mark the said boundaries”. This was probably not an unusual way of doing things at that time and where the boundaries so fixed were accepted and remembered by the parties there was no further difficulty.

[3] But that has not been the position here. The present applicant, Christopher MacKinnon, became the tenant of 7 Coilleag in 1998. He soon discovered that it was difficult to reconcile what he understood to be the extent of his croft with his neighbours’ various understandings of where they thought the boundaries to be. So he applied to the court to fix the boundaries: RN SLC/143/04. Having heard evidence and carried out an inspection the court, by its order of 8 March 2005, fixed the lines of the western and eastern boundaries of the croft but was unable to fix the other two boundaries because the applicant had never provided it with the identities of the shareholders in the common grazings which lie to the south of the croft. The result was that the court had not been able to intimate the application to them and that boundary could not, of course, be fixed without giving them the opportunity of being heard. That had a knock-on effect on the north boundary, which the court was also unable to fix.

[4] What the court’s order of 8 March 2005 says is “FIND AND DETERMINE that the lines of the east boundary and of the west boundary of croft 7 Coilleag, Eriskay, lie in straight parallel lines along the lines delineated in red in the plan, production number 25”. The court also staked out the line of the eastern boundary, between croft 7 and croft 6, with red marker poles which they left in situ. The western boundary was not marked on the ground but was determined as running parallel to the eastern boundary.

[5] Despite the court’s said order there has been continuing difficulty as to the whereabouts of the western boundary between Mr MacKinnon and Mrs O’Connor, the former tenant and now, along with her husband, owner occupier of croft 8 Coilleag. There have been a number of developments which have necessitated the bringing of the present application. This application again asks for the fixing of the croft boundaries and this time it has been intimated to all relevant parties. Only Mrs O’Connor has entered appearance. The landlords, now South Uist Estates Ltd in the form of the community landlords who now own the island, have not entered appearance but Ms Amanda MacMillan attended the hearing and supplied us with the original of the only map of this part of Eriskay held by the estate, a copy of which is already lodged as production 15.

[6] The other thing to narrate at this point is that prior to the 2005 application Mr MacKinnon had bought an area of land which he believed formed part of his croft for the purpose of building a house. Production 10 is a copy of the relative entry in the Land Register, Title Number INV7534, showing the acquisition to have been registered on 26 March 2004. What he bought is shown outlined in red on the title plan on which it is seen not quite to coincide with an area of similar size which Mr MacKinnon had previously had decrofted by virtue of a decrofting direction granted by the Crofters Commission, as it then was, on 23 September 2002. Production 11 is a copy of the location and site plans showing what was decrofted.

Developments since 2005

[7] In 2006 Mrs O’Connor and her husband bought the land which they believe to constitute 8 Coilleag from South Uist Estates Ltd. The Land Certificate Title Number INV17270 in their favour, dated 30 November 2006, is production 4. It includes the title plan issued by the Keeper of the Land Register, showing the area conveyed bounded in red. It extends to 3.3 ha. Mr MacKinnon contends that it includes a substantial area of land forming part of his croft.

[8] On 7 August 2012 Mr and Mrs O’Connor had 8 Coilleag registered in the Crofting Register. Production 13 is a copy of the relative entry. The plan incorporated in the entry shows an area co-extensive with the land owned by Mr and Mrs O’Connor under title number INV17270, when account is taken of land resumed from the croft for road building purposes, shown outlined in green on said plan.

[9] The applicant now wants to buy the rest of his croft but believes it to include an area of land which Mr and Mrs O’Connor now own by virtue of their said Land Certificate. If that turns out to be the case he will require to seek to buy the relevant area from the O’Connors and the rest of his croft from South Uist Estates Ltd.

[10] In these circumstances Mr MacKinnon has brought the present application which seeks:

“Orders (1) under section 53(1) of the Crofters (Scotland) Act 1993 as amended determining the boundaries of the tenanted croft 7 Coilleag, Eriskay, Isle of South Uist, of which [he] is the crofting tenant, and in particular the lines and extent of the east boundary, the west boundary, the south boundary and the north boundary of the said croft and (2) under section 14(4) of the Crofting Reform (Scotland) Act 2010 modifying the entry in the Crofting Register in respect of 8 Coilleag, Eriskay, in order that it is consistent with any Order issued under section 53(1) referred to above.”

[11] In the foregoing state of affairs a question obviously arises as to the competency of this application in relation to the western and eastern boundaries, insofar as the lines of those, although not their extent, were determined by the court in the 2005 case. There was no appeal against that decision and there has been no application for a re-hearing.

[12] The present application is not presented as one for re-hearing. Instead it is based on a claim that the pegs inserted in the ground by the court in 2005 did not follow the line of the eastern boundary as shown on the plan attached to the court’s order. The latter is, it is said, intended to represent a line running due north-south, whereas the pegs do not. What, in effect, the application asks us to do is affirm the lines on the map attached to the court’s 2005 order as representing the lines of the western and eastern boundaries, in preference to the pegs so far as the eastern boundary is concerned, and to fix the north and south boundaries of the croft.

[13] In their answers to the application Mr and Mrs O’Connor aver (i) that the narrative of the 2005 decision does not determine the western boundary of croft 7, merely stating that it is parallel to the eastern boundary, (ii) that it is not possible to scale the plan attached to the court’s order so as to show where the western boundary is, and (iii) that it is not explained where the width of 60 metres on which the court relied as the distance between the western and eastern boundaries in 2005 came from. The answers also explain that Mr and Mrs O’Connor employed a surveyor when buying their croft and that they gave him a copy of the 2005 judgment. However, for tragic family reasons, that surveyor was not able to give evidence before us.

How the 2005 decision was arrived at

[14] Against that background it is necessary to say something about how the 2005 decision was arrived at. A copy of the judgment is lodged as production 3. It involved the tenants of crofts 4 and 5 (held by the same tenant) and 6 Coilleag, as well as Mr MacKinnon and Mrs O’Connor. They all gave evidence. The court found them all generally credible but the only witness whom they found to be both credible and reliable was Mr Donald MacLellan, the tenant of croft 6 (see the final paragraph of page 14 of the judgment). Mr MacLellan could remember the 1937 Land Court hearing; indeed it was he and his brother who alerted the court to the fact that it had taken place (page 2). He produced a map on which he had drawn lines showing a boundary running in a straight line north to south between crofts 6 and 7 (page 5, penultimate paragraph) and he insisted that the boundary ran south rather than east (page 7, second paragraph). His evidence was regarded so authoritatively by at least one of the other witnesses, Mr J A MacKinnon, tenant of crofts 4 and 5, that that witness changed his own evidence as to his own boundary to bring it into line with Mr MacLellan’s evidence (page 8, final paragraph). It was on the basis of Mr MacLellan’s evidence that the court fixed the eastern boundary of croft 7. It then noted that two maps which had been lodged showed the western and eastern boundaries of the croft as straight parallel lines (page 15, penultimate paragraph), a matter noted as not having been contested by Mrs O’Connor. It fixed the western boundary so as to fit the 2.017 ha shown as being the area of the croft in the Crofter’s Commission Register of Crofts within the boundaries, having regard to the approximate whereabouts of the north and south boundaries (page 18, final paragraph).

The hearing in the present application

[15] We heard the present application at Eriskay on 18 February 2015 when the parties represented themselves. We carried out an accompanied inspection on 19 February.

Witnesses

[16] In addition to the parties themselves, Mr Peter John McLavin, architectural technician, and Mr Jonathan Bridge, grazings clerk, gave evidence for the applicant and Mrs Mary Theresa Schmoller, the respondent’s sister, gave evidence for the respondent. We found all of the witnesses to be credible. We believe Mr MacKinnon and Mrs O’Connor to have been telling the truth as they understood it. Given the limited scope of our inquiry, which we come to below, we have not had to resolve conflicts of fact between the parties.

[17] The limitation to which we refer is that imposed by the fact that the court has already, by virtue of its 2005 order, fixed the lines of the western and eastern boundaries. We made it clear to parties at the outset of the hearing that the merits of that decision were not to be opened up in the present application and that the application was concerned solely with resolving any ambiguity or apparent discrepancy in the 2005 order, as, for example, the alleged discrepancy between the line of the eastern boundary as marked on the plan attached to the court’s order and as pegged out on the ground. At times, in the course of the hearing, the evidence went well beyond that. We narrate below but for the reason just stated we do not rule on the conflicts which this evidence disclosed. These conflicts were the same conflicts as had been argued before the court in 2005 and are to be taken as having been decided by the court in its judgment.

The evidence

[18] We allowed various productions to be lodged, although late. These were unopposed. They were allocated production numbers 39 to 44. The copy of the estate map brought along to the hearing by Amanda MacMillan was lodged by the court itself as number 45.

Christopher Gerard MacKinnon (57)

[19] Mr MacKinnon gave evidence that he lives at 7 Coilleag, Eriskay, South Uist. He is the skipper of a tugboat based in Leith.

[20] Mr MacKinnon explained that he had acquired the tenancy of this croft in the 1990s. At that time he had been living in Edinburgh, where his work is based, but he had been brought up on Eriskay, at 6 Rubh Ban, where he had lived until the age of 17.

[21] Having acquired his tenancy uncertainties had emerged as to where the croft boundaries were. Things had got to the point at which he had to apply to the Land Court to determine the matter as the Estate had said that they had no records of where the crofts lay.

[22] He had given evidence to the court in 2005 and the court had fixed the lines of the east and west boundaries. Mrs O’Connor was the tenant of 8 Coilleag, to the west, Mr Donald MacLellan was the tenant of number 6 and he continued to live there. It had been on the basis of his evidence that the court had fixed the eastern boundary. The court had pegged out that boundary. He had never agreed with the eastern boundary as it had been spoken to in evidence by Mr MacLellan and subsequently marked out on the ground by the court. However there had been no continuing difficulty to do with that boundary.

[23] The difficulties had arisen with the western boundary. At Easter 2013 he had been trying to plant some potatoes on an area of ground he believed to be part of his croft when he was approached by Mr O’Connor who indicated that the particular area of ground was on the O’Connors’ croft. Mr MacKinnon had contacted the factor and asked him to come and resolve it. The factor had attended within a couple of hours. He had explained to the factor that the Land Court had ruled on where the crofts were but at that particular time he could not find the pegs marking the line of the eastern boundary. The western boundary had never been pegged out by the court. The factor had therefore been presented with two crofters in disagreement. Mr MacKinnon had given the factor all the documentation he had in relation to the 2005 hearing but that had not led to any firm conclusion. At that point in time the witness had not been aware that the O’Connors had purchased their croft. However, he had got his brother’s solicitor in Edinburgh to do a search as to who owned the land and, as a result of that, he had obtained a copy of Mr and Mrs O’Connor’s Land Certificate. When he saw it he was worried because it indicated that the land on which he had been planting potatoes did not belong to his croft. He could not reconcile that with the Land Court’s decision. The two did not “add up” so he knew there was now a big problem. Storas Uibhist, the community landlords, had tried to mediate between himself and the O’Connors. He had therefore decided to bring in a surveyor to plot everything out and if that showed there to be a problem with the location of the house on number 8 (Mr and Mrs O’Connor’s house) he would have been prepared to decroft whatever area of ground was required in return for Mr and Mrs O’Connor annulling their purchase of land which was properly part of his croft.

[24] The witness himself already had a feu on his own croft, registered in 2002, before the O’Connors had acquired ownership in terms of their Land Certificate. He had also got the area of the feu decrofted. He was now wanting to buy the rest of his croft. The work carried out by Mr McLavin, the surveyor he had instructed, and his own solicitors in attempting to have this matter resolved had cost about £12,000 so far. He now wanted to complete the purchase of his croft from the landlords, whoever they may be. But before doing that it was very important to have the boundary with the common grazings established.

[25] Reference was made to production 42A, an aerial photograph obtained by Mr McLavin from the Scottish Government Rural Payments Inspectorate at Balivanich. The yellow lines on that production and production 42B showed the boundaries of the common grazings and where that boundary met the southern end of croft 7.

[26] With reference to the northern boundary, there was a fence at the north end of the croft which he and Mr McLavin had taken as their starting point for Mr McLavin’s survey. The croft to the north of number 7 was number 3, tenanted by Mrs Annie MacLeod. Production 41 was a letter from Mrs MacLeod which had been lodged in the 2005 application and which enclosed a map showing what Mrs MacLeod considered to be the boundaries of her croft. The letter makes the point that there is a right of way between her croft and 7 Coilleag so that, in her words, “they, therefore, do not directly border one another”. The right of way referred to was the track which was shown on production 6. Mr MacKinnon agreed that his croft extended only to the south edge of the track shown on production 6, not beyond that.

[27] Asked if there was anything else he wished to say before cross-examination, Mr MacKinnon said that all he wanted was the truth. He had been waiting to have his boundaries determined since 1998. He wanted to buy his croft, which was his legal right. He had been unable to do so because of difficulties with his boundaries which had been on-going for 17 years. He had taken an oath to tell the truth at the last hearing and had also signed a document saying that he would abide by the court’s decision.

[28] Mr MacKinnon emphasised that he did not want his croft to go over the boundary of the common grazings. He would accept a decision of the court regarding the southern boundary of his croft, even if it meant reducing the acreage of his croft so as not to encroach upon the common grazings. This was said in the context of the possibility that an adjustment of the northern boundary from where Mr McLavin showed it to be on the plans he had prepared would have a knock-on effect on the southern boundary.

[29] There would be no more courts or appeals by Mr MacKinnon. The process was ruining him financially. He would abide by the court’s decision and would do his best to reconcile with all his neighbours.

[30] In cross examination Mr MacKinnon confirmed that he had not acquired the tenancy of his croft as the result of a family assignation. He had bought the tenancy from Iain Ruaraidh MacInnes and had not been aware, at that time, of difficulties there had been in the distant past (a reference to the 1937 Land Court case).

[31] Mr MacKinnon denied that he had paid only £100 for the tenancy. He had paid £4000. Mr MacInnes had not been living on the croft prior to the assignation. The croft had been tenanted by Angus O’Henley and then in succession by Morag O’Henley, her son Donald Johnston, Peter Dalloch and then Iain Ruaraidh MacInnes. It was absolute nonsense to suggest that the witness had acquired the tenancy in return for a charitable donation towards the purchase by the community of the local shop.

[32] At the time of acquiring the tenancy, he was being pressurised for having Eriskay ponies on land which was not his and he had seen the croft as an opportunity to own livestock legally and to save the ponies which were on the edge of extinction. He had wanted to move home and build a house on the croft. He had had to sell his house in Leith because crofters were not allowed to own another house somewhere else.

[33] Once he had the tenancy he had applied to South Uist Estates Ltd for a feu. Production 11a was a plan of the feu. He was unable to say, by reference to the scale of 1:1000, what the width was between the west and east boundary of the feu. He admitted having concreted three posts into the ground on the west side of the feu but he had removed two of them. Their purpose had been to “keep the line” because he had felt that the O’Connor house was not being built where it should have been.

[34] Mrs O’Connor put it to him that using the scale in production 11A his feu was 25 metres in width but the witness was unable to confirm that. She could ask his surveyor.

[35] Mr MacKinnon confirmed that Mr Murdo MacKinnon, who had drawn up Mrs O’Connor’s feu plan, was a local draughtsman. He confirmed that he himself had taken to the Land Court (in the 2005 case) a plan which showed his croft as being 66 metres in width. Asked why a plan which is production 11A had been drawn up when he had this other map, the witness explained that at that time his neighbours could not decide on their own boundaries. Production 11A was the result of a meeting with Tim Atkinson, the Estate’s Factor at the time.

[36] Mr MacKinnon accepted that when he had first registered his feu the orientation was wrong. That was an error made elsewhere, not by him. Mrs O’Connor referred to production 10, being Mr MacKinnon’s Land Certificate. She suggested that had Mr MacKinnon produced proper plans his feu would have been registered correctly in the first place. Mr MacKinnon explained that he was having it corrected and reregistered at the moment. It had not been the fault of South Uist Estates, nor had it been his own fault: it had been a clerical error. Reference was made to productions 6 and 7, two of the plans produced by Mr McLavin. Mr MacKinnon confirmed that the magenta lines showed the fencing round his feu. Asked whether this had been done in consultation with South Uist Estates, he said that Mr Huw Francis had measured the feu. However he corrected that, it having been pointed out to him that neither Storas Uibhist nor Mr Francis had been in place in 2002. Pressed as to where exactly the correct boundaries of his feu were he did not know. He would have to speak to Mr McLavin about that.

[37] Mrs O’Connor referred to production 5, a letter from Mr McLavin to a solicitor then acting for Mr MacKinnon, and to a statement within it saying that when the survey of which that letter is a report was being carried out Mr MacKinnon had noted “with some concern that the pegs at the northern extent extended onto croft number 6 some 10 to 15 metres”. She suggested to the witness that Mr MacLellan was being given that extent of land to the detriment of her croft. Mr MacKinnon replied that pegs 1, 2 and 3, referred to in Mr McLavin’s letter, were not where they should be and the court would have to rule on the discrepancy between the red lines on the map attached to the 2005 order and where the pegs had been placed. He denied a suggestion that he was wanting to rely on the plan attached to the 2005 order because a line drawn parallel to the line of the pegs would have gone straight through his house site. The fact of the matter was that the lines on the map attached to the 2005 order did not align with pegs 1 and 2. He was not certain whether Mr McLavin had carried out a GPS survey.

[38] Mrs O’Connor finished her cross examination by putting it to the witness that all the boundaries he had come up with had been constantly unreliable and that he had been constantly “flying kites”. Mr MacKinnon denied that that was so. Production 11A had been based on what other crofters had told him at the time and when measured it was well short of the area of his croft. Since then things had evolved; it had been a matter of progression.

[39] Mr Smith pointed out that there may be an element of confusion in relation to production 11A because it shows not one scale but two: the scale referred to by Mrs O’Connor and an OS map scale of 1:2500. Mr Smith explained that on one scale the width of the feu plot was 25 metres and on the other about 65 metres. Mrs O’Connor took the point but made reference to attempts she had made to scale the size of Mr MacKinnon’s feu from the estate map. These attempts had been unsuccessful because the pencil lines on production 11A were too thick.

Peter John McLavin (51)

[40] Mr McLavin gave evidence that he was an architectural technician employed by Messrs D M Hall, chartered surveyors. He had a degree in interior architecture, specialising in the refurbishment of buildings, from Napier University in 1989. He had been in his present employment for approaching eight years. The preparation of rural maps comprised about 15% of his job although that was not all to do with crofts. Most of it was to do with the breaking up of large estates.

[41] He had been instructed in relation to this matter in early 2014. Prior to that he had not had any dealings with Mr MacKinnon. He had first met Mr MacKinnon aboard his tugboat. Mr MacKinnon had showed him the map attached to the Land Court’s 2005 order. He had been asked to establish the extent of Mr MacKinnon’s feu in relation to the rest of the croft. He had been able to plot out the croft on the basis of ordnance survey data and he had provided Mr MacKinnon’s solicitors with a plan of the croft. That had been in relation to Mr MacKinnon’s intention of buying the croft.

[42] All of that had been done as a desktop exercise. He had subsequently been contacted again by Mr MacKinnon and asked to visit Eriskay and plot the two parallel lines shown on the Land Court plan on the ground. The Land Court had not defined the northern boundary and the purpose of this exercise was to determine what length the boundaries would have to be to achieve the 4.9 acres which he understood to comprise the croft.

[43] He had come to Eriskay in March 2014. He described the exercise by which they had discovered the stumps of the Land Court pegs. That had been the first part of the exercise. The next stage had been to establish a point at the north where it was reasonable to suppose the western boundary should start. They had extended the line of the Land Court pegs until it reached the fence at the north. From there they had measured, southward, the distance required to achieve an acreage of 4.9 acres, given that the western boundary was to run parallel with the eastern boundary and 60 metres away from it. The 60 metres was the result of scaling from the Land Court plan. That plan had shown a width slightly greater than 60 metres in some places so they had chosen 60 metres as the narrowest width for the croft.

[44] The result of that exercise did not tally with the Land Court plan. It resulted in the O’Connors’ house being half on their own croft and half on Mr MacKinnon’s. They had therefore begun measuring the parallel lines shown in the Land Court’s maps from the various buildings, especially the ruin of the croft house on number 7. They had used the buildings as datum. They had then put in some markers in reliance on these measurements. These markers accorded with the lines on the Land Court map. The result of that exercise had been that the Land Court plan had been found to be reasonably accurate in relation to where the boundary was expressed as being relative to the various buildings mentioned. They had then pegged the western boundary and the line thus produced did not encompass the O’Connor’s house. They had then plotted Mr MacKinnon’s feu.

[45] As a result of all of that he had produced his report, production 5. Production 6, 7 and 8 were maps he had produced relative to his report. He took us through those, explaining what they showed. Looking at production 8, the blue lines showed the east and west boundaries of croft 7 as delineated by the court in 2005, the green area was Mr MacKinnon’s feu as occupied, the blue triangle was land contained on Mr MacKinnon’s Land Certificate but not occupied by him and the red areas were land forming part of croft 7, according to the court’s 2005 decision, but included within the O’Connor’s Land Certificate and shown as being part of croft 8 in terms of the entry in the Crofting Register.

[46] His next involvement had been when contacted by solicitors to ask if he would be available to given evidence at this hearing. Prior to the hearing he had been shown Mr and Mrs O’Connor’s response to the application. He had produced a number of documents which he felt were pertinent to that response. He had been provided with an electronic photographic plan showing the boundaries of the common grazings by the Scottish Government’s office at Balivanich. He had prepared the various plans which comprise production 42 from that photograph. When received the only markings on the photographic plan had been the yellow lines shown on production 42. They showed the boundaries of the common grazings. The other markings on the production had been made by the witness himself. The south end of the crofts showed a boundary between croft 7 and the common grazings.

[47] On production 42B the pink line was the overlay of croft number 8 based on production 17. There were also red lines showing the outline of croft 7. The most northerly showed the croft bound by a fence (the fence being shown in white on production 42B). That boundary corresponded to the northern boundary shown in blue in production 6. The other red outlines showed various versions of croft 7. The green outline showed what had been registered as croft 8 in the Crofting Register. There were two outlines shown for croft 7 itself. One ran to the south of the track at the north end of the croft. If it was taken as the northern boundary and the southern boundary was the boundary with the common grazings, the croft would have to be slightly wider in order to accommodate its known size. That is what the outer red outlines on the western and eastern side represented. He had been asked to do this by Mr MacKinnon to see where his croft might fit in as part of the jigsaw. He had widened the croft by offsetting three metres on each side.

[48] In answer to Mr Smith the witness confirmed that the narrower red lines on the west and east side of the croft were the lines which corresponded to the Land Court’s 2005 plan. Asked whether he had calculated the area of the croft without widening it he confirmed that he had and that it extended to 4.7 acres.

[49] Questioning hitherto had been conducted by the court. Mr MacKinnon was given the opportunity of questioning Mr McLavin but he had no questions.

[50] In cross-examination Mr McLavin was asked why Mr MacKinnon needed to know where his feu was. He answered that Mr MacKinnon wanted to know that his feu was on his own croft. Asked whether it was, he said that whilst the fence around the feu was on croft 7 not all of the registered extent of the feu was.

[51] Mr MacKinnon had wanted to know where his croft lay. They had been working on the basis of two parallel lines 60 metres apart, being the narrowest width shown on the 2005 Land Court map (see para [43] above).

[52] Mrs O’Connor put it to the witness that the green lines on production 6, purportedly depicting the extent of croft 8 as registered by her and her husband, were wrong in as much as one of them ran through a building. The witness explained that the plan was based on an OS map. The location of the buildings was as shown on that map.

[53] Asked why he and Mr MacKinnon had decided not to use the line of the Land Court pegs as a boundary, Mr McLavin explained that they had plotted out a boundary using the pegs but that boundary did not match the court’s plan which showed where the boundaries should lie. The line of the pegs was going in a different direction. Mrs O’Connor put it to him that if the outline of the croft was moved from the line of the pegs to a more north-south orientation the result was that more of Mr MacKinnon’s house was included within the croft but the witness denied moving anything. The lines on the plan (production 6) were Land Court determinations. If one went with the line of the pegs placed in the ground by the court both Mr and Mrs O’Connor’s and Mr MacKinnon’s houses would be bisected.

[54] Mrs O’Connor put it to him that, whereas he had been asked to provide an outline encompassing 4.9 acres, the exercise should surely have been carried out the other way round; fixing the boundaries first and then calculating the extent of the croft within them. Mr McLavin replied that he had “two parts of a formula”; two sides of the croft which had already been determined. So he knew the width. What had not been established was the top and bottom of the shape to be enclosed. So they had chosen the fence as a starting point and then extended the other boundaries southwards until an acreage of 4.9 acres had been encompassed. Asked where the figure 4.9 had come from, the witness said that it had been given by Mr MacKinnon as the extent of his croft.

[55] Mr McLavin confirmed that the blue line on production 6 showed the entrance to Mr MacKinnon’s house as being outwith his croft. He denied that this had been an exercise in taking land from the O’Connors. He was neither giving nor taking. He had plotted the parallel lines of the Land Court’s decision on production 6. That is where they were. The lines had been marked at 60 metres apart. Asked what it was on the Land Court map (the map attached to production 3) which told him where to place those boundary lines, the witness made reference to not using the Estate map (production 17) because of its scale (it was too small) and because it had been over-marked. He considered it more of a location plan. Asked by the court, in clarification, as to whether there had been any difficulty in deciding where, on the ground, the lines fixed by the court in 2005 were, he replied that there had been none.

[56] In re-examination by Mr MacKinnon, Mr McLavin confirmed that they had taken measurements from the ruin of the old croft house on number 7. They had also made use of other objects referred to in the Land Court’s ruling. They had carried out a number of calculations and Mr MacKinnon had wanted to be “incredibly thorough”.

[57] At the close of Mr McLavin’s evidence Mr MacKinnon referred to a letter in his possession from his aunt, a Mrs MacMillan, to be proffered to the court in lieu of her evidence but he himself thought it was not really relevant so the matter was not pursued.

Jonathan Andrew William Bridge (57)

[58] Mr Bridge, who lives at West Kilbride, South Uist, gave evidence that he had been the Grazings Clerk for the Isle of Eriskay, covering a number of townships, for the past 18 months.

[59] Shown production 42, he said it was identical to one he himself had received and he could say with complete confidence that the yellow lines on the production represented the boundary of the Beinn Crácabhaig Pendicle of the Beinn Crácabhaig and Beinn Stac Common Grazings.

[60] The witness emphasised, by way of clarification, that he was attending in order to help by supplying matters of fact, the fact in question being the identity of the boundary of the common grazings. He explained that he was a Chartered Civil Engineer by profession, with 45 years’ experience of land surveying and that he was very familiar with handling material such as production 42. He had superimposed the yellow line shown on that production on data from the Registers of Scotland showing the extent of croft 8 as registered by the O’Connors. As a result of that exercise, and making allowances for different kinds of projection, there was no doubt that the boundaries registered by the O’Connors encroached on the common grazings to a significant extent. It was not marginal, not a matter which could be explained by the thickness of a boundary line: it was a significant encroachment. In cross examination Mr Bridge was asked about the souming of the crofts. He said that if both crofts had a full share they would have the same souming being 10 sheep, 2 cows, a pony and their followers.

[61] Asked whether Coilleag was an open township, he thought he was right in saying that there was no such thing, legally, as an open township but some arrangements were, nevertheless, referred to as open townships. His own understanding of the term was that the in-bye land of the crofts was unfenced, save for house plots, so that the land was, in practical terms, open for all the crofters’ stock to graze. It was a requirement of the Grazing Regulations that each crofter made his or her in-bye land available to other crofters throughout Eriskay during the winter months. He described it as a “reciprocal arrangement” among all shareholders across the whole of Eriskay. One could get one’s self excluded from this arrangement by obtaining the permission of the committee, which was not to be unreasonably withheld. There was a right of appeal to the Crofting Commission.

[62] Asked about markings on production 40, Mr Bridge said that when this edition of the OS map was produced it had not been possible to distinguish particular, individual, rocky outcrops, so those markings were symbolic and not real representations of rocky outcrops. More recent OS editions, based on aerial or satellite photography, were more detailed and more accurate. What he had said as to these representations being symbolic applied to both crofts and common grazings land: it was universal to the mapping of the time.

[63] In answer to Mr Smith Mr Bridge confirmed that the common grazings were in the course of being registered in the Crofting Register: they were expecting their information pack this week.

Mrs Mary Theresa O’Henley or Schmoller (63)

[64] Mrs Schmoller gave evidence that she was a teacher and development worker, a sister of the respondent Mrs O’Connor and that she lived at Kildonan, South Uist.

[65] Although raised in South Uist, her family had lived in Eriskay for several months when her grandmother, who lived in Eriskay, had been ill. This was when the witness would have been around six years of age. They had lived with their grandmother at Acarsaid but would walk from there to Coilleag. Asked about her experience of croft 8, she could remember where the horse had been tethered. That was, as we understood her evidence, in the vicinity of the old croft house of number 7 and the horse could graze right up to the wall of that house. They needed to visit the croft (although her grandmother lived in Acarsaid she was the tenant of croft 8 Coilleag) because all animals in Eriskay at that time were tethered and therefore had to be moved from time to time. She had walked the boundaries of the croft and been told what the boundary was. By reference to production 15 she indicated the route by which they had come from Acarsaid to Coilleag and the area they had visited there. It is within the boundaries of croft 8 on that production.

[66] In cross examination Mr MacKinnon challenged the reliability of a recollection from a time when the witness had only been six years old. Mrs Schmoller explained that, although she had lived in Eriskay only when she was six, she had visited every year except 1973, when her son had been born. And every time they had used the same route coming and going between Acarsaid and Coilleag. She confirmed to the court that she was confident in her recollection in the face of an assertion from Mr MacKinnon that she and her sister were unknown to anyone on the island and could not have been visiting every year; a proposition to which she took exception.

Mrs Mary Margaret O’Henley or O’Connor (62)

[67] Mrs O’Connor gave evidence that she was a headmistress of a school in Hertfordshire.

[68] She had been born in Glasgow and raised in Lochboisdale. During her childhood her grandparents had lived in Eriskay. They had visited them every school holiday until she had been eight years of age. Her mother had been caring for the witness’s grandmother, who lived on Eriskay at that time, in the village of Acarsaid. That was where the family would spend their holidays.

[69] She agreed with her sister’s description of the route taken from Acarsaid to Coilleag. They would go to Coilleag not, primarily, for visiting, although they did occasionally visit a lady called Ceit-Ann, but to take care of the tethered animals.

[70] Her great-great-great-grandfather had originally got the tenancy of 8 Coilleag in or around 1860 and it had been in the family since. Her grandfather had died before she was born. Her uncle lived on Eriskay but he was at home only at the weekends so her mother had done a lot of the croft work, such as planting potatoes.

[71] Mrs O’Connor had left the islands at the age of 16 to work in Glasgow, then in London, before going to university, having her children and qualifying as a school teacher. She had lived in England for some 35-36 years. During that time she had not visited Eriskay annually. Her parents had both died by that time and she and her husband had tended to holiday more in Ireland, where her husband’s parents were still living. However they would visit Uist from time to time and pop over to Eriskay for the day.

[72] She had become tenant of 8 Coilleag in 2004. The tenancy of the croft had at one time been held by her mother, then by her uncle, then by a cousin. She had asked her cousin for a stance on the croft in order to build a house and her cousin had said “won’t you take the whole croft? I can’t stand the hassle”. Her cousin had therefore assigned the tenancy to her for a payment of £6,500.

[73] She felt that she had been dragged into the 2005 Land Court case not knowing what to expect nor what was expected of her. She disagreed with its conclusions. After the decision had been issued she had contacted the court office for clarification but had simply been told to scale the boundaries off the map attached to the court’s order.

[74] She confirmed that she and her husband had bought the land which they understood to comprise 8 Coilleag from South Uist Estates Ltd. In doing so they had used the services of a Mr MacLeod, from the Island of Harris, a very experienced surveyor. He had found a marker from the 1937 dispute. She had felt very confident as to the quality of his work. He could not attend this hearing due to a family tragedy.

[75] Referred by the court to production 8, one of the maps produced by Mr McLavin, she was not able to confirm whether it showed accurately where the Land Court had placed the boundary between crofts 7 and 8 in 2005. She did not have that expertise. She felt that what that production showed was that the eastern boundary of her croft was being moved progressively westward, taking away from her croft and increasing Mr MacLellan’s croft on the other side. She felt very strongly that if a proper map had been used from the outset we would not have the problems now being experienced. The orientation of Mr MacKinnon’s feu was moving around constantly.

[76] Mrs O’Connor confirmed that she had had the croft registered in the Crofting Register. She had used the same map as used in her land purchase for that purpose. She had not referred back to Mr MacLeod, her surveyor, at that point. It had not been necessary.

[77] Asked by the court as to whether her grandparents had lived in Coilleag before moving to Acarsaid, she said that they had not. Her great-grandfather had left Coilleag for Acarsaid.

[78] She felt that the crux of the matter was the handwritten map showing the 60 metres. Asked if this was a reference to the map on which Mr MacLellan had drawn lines for the 2005 hearing, she replied that it was not. She was referring to a map produced by Mr MacKinnon and someone else which had come to be relied upon by the court in its 2005 decision despite the fact that it showed no detail.

[79] In cross-examination Mr MacKinnon asked the witness whether she stood by the plan of number 8 she and her husband had submitted to the Land Register. She said that she had total confidence in Mr MacLeod who was a very competent person and that she was standing by it. Asked what the acreage of her croft had been when she applied to buy it she did not know. One couldn’t work out acreages without knowing the perimeters. At the time at which she had applied to buy the croft the boundaries had not been determined. Referred to production 20, she thought it was a map drawn up by a local authority employee. It had gone to the Land Register. Although an acreage of 4.78 acres was stated on that document it had been rejected by the Land Register. That was because Mr MacKinnon had bought his feu by that time and, as we understood her evidence, her plan had been rejected because of a conflict between the two deeds. She had then got someone to come and plot the extent of her croft out physically on the ground.

[80] Asked whether the plan produced as a result of that exercise represented a 20 degree swing in the orientation of what was being bought she said that the orientation had been produced by the local authority computer on which the draughtsman had prepared the plan. It was the witness’s feeling that, at the end of the day, we had to defer to South Uist Estates Ltd.

[81] Referred to production 31, a plan evidently prepared by said Mr MacLeod, the witness said that that was not the plan on which their title plan was based. She was asked about an apparent discrepancy between the five acres, or so, stated as being the extent of the subjects on that plan and the actual extent of the shaded area which, Mr MacKinnon submitted, was 8.15 acres. Mrs O’Connor said that acreage was not something she had taken notice of. Mr Bridge had said that the land she and her husband had registered had extended into the common grazings, so that might account for the difference. For her own part, she relied on professional people. She only ever employed professional people and she expected them to do a professional job. She was a professional person herself and she expected a professional performance from other people.

[82] She had tried to register her land purchase in 2006, just after the 2005 decision. Asked why it had not been dealt with by the Land Register until 2009 and whether the Land Register had refused to register it, she explained that her solicitors had told her to be prepared for it to take two years in any event but that they had then come back to her to say that another feu had been bought and that there was a conflict between it and what she was seeking to have registered. The Land Register had not raised any issue other than Mr MacKinnon’s feu.

[83] Asked why she had not used Mr Murdo MacKinnon, a local surveyor, whom she had used when applying for planning permission for her house, for the preparation of her title plan she asked why she should employ a draughtsman instead of a surveyor. Furthermore Mr MacKinnon, being a local man, had not wanted to be involved in any conflict.

[84] Mrs O’Connor closed her evidence by emphasising that, croft 8, having been in her family since 1860, there was no reason to suppose that they would not know the correct boundaries whereas Mr MacKinnon, by his own admission, did not know his.

Submissions

For the applicant

[85] Mr MacKinnon submitted that the orientation of his croft had historically fallen in a north-south direction not ten degrees off north-south which was the line disclosed by the Land Court’s 2005 markers. He confirmed that he wished us to find the croft boundaries to be those shown on Mr McLavin’s map, production 6. The boundary with the south was to be with the common grazings and the boundary to the north was to be the south side of the right of way between his croft and the late Annie MacLeod’s croft.

For the respondents

[86] Mrs O’Connor said that at the 2005 hearing she had been under the impression that all she was being asked to do was point out her croft boundaries. She had not realised that most of her great-great-great-grandparents’ buildings were going to be subsumed into croft 7. Her forebears had certainly not built their buildings on someone else’s croft.

Discussion

Eastern boundary

[87] We are satisfied that there is a discrepancy between the line of the poles placed in the ground by the court in 2005 and the line of the eastern boundary shown on the map attached to the court’s order. We are persuaded of that by Mr McLavin’s evidence and the plans prepared by him and our own inspection of the line disclosed by the pegs which still remain in position. The plan attached to the court’s order shows a due north-south boundary but the line of the poles veers from that by approximately 10 degrees. Although we did not carry out a survey of our own and although we did not have the benefit of Mr MacLeod’s evidence as a means of testing Mr McLavin’s, we are satisfied from our observations that Mr McLavin’s evidence is correct. In that regard we have considered whether we ought to continue the case with a view to allowing Mr and Mrs O’Connor to lead evidence on this matter, whether from Mr MacLeod at a later date or from someone else. We were not asked to do so but it is something we have considered for ourselves. However, we have concluded that all that is likely to be achieved by such a course of action is further delay. We do not consider that there is any possibility of further evidence displacing that of Mr McLavin on this critical question of discrepancy between the line of the poles and the line shown on the court’s map.

[88] Given that such a discrepancy exists, which is to be preferred, the poles or the map? As a general principle what the court’s order says is what matters. For the obvious reason that it is the court’s order, it takes precedence over anything said in the note accompanying and explaining the order. But an order can sometimes be demonstrably wrong. It may plainly fail to give effect to what the court intended. It may, therefore, have to be appealed or revisited at a rehearing, for which our rules allow.

[89] The circumstances of the present case may be thought to be a good example of a court’s order being plainly wrong. There could not, it might be thought, be better evidence as to where the court intended a boundary to be than putting marker pegs in the ground. That is the whole point: to show exactly where the boundary is. We observe, as a check on this approach, that marker pegs can be moved or removed or simply become obscured in the course of time, sinking into the ground or becoming overgrown with vegetation. But that has not happened here and we found 4 of the 5 pegs placed by the court in 2005 exactly where the court described them as being.

[90] Therefore we are not prepared to simply take a legalistic stand on this and say that because the pegs are not referred to in the court’s order they can be ignored in favour of the map which is. Parties deserve a reasoned resolution of the conflict.

[91] In attempting that, it is important again to refer to the general approach taken by the 2005 court. We have already dealt with this in some detail at paragraph [14] above. It is plain that, for the reasons there explained, great reliance was placed on the evidence of Mr MacLellan. He had lodged a plan marked with what he thought to be the boundary between crofts 6 and 7 and it is clear that the court’s decision as to that boundary was, with one minor qualification, wholly based on his evidence. What the court was intending to do, and was trying to do, in its judgment was give effect to his evidence. Thus it replicated on the plan attached to its order the line Mr MacLellan had drawn on his production. Replicating that on the ground, however, was not such an easy matter in the absence of skilled input from a surveyor. What was marked on the ground was the court’s understanding of where the line on the map ran. How it was done has now been shown to be incorrect.

[92] It is important also to have regard to the limitations of what the court did in 2005. It demarcated the line of only the eastern boundary. Had it gone on to mark the other boundaries, it would have found, on Mr McLavin’s evidence in the present case, that the western boundary bisected both Mr MacKinnon’s and Mr and Mrs O’Connor’s house sites, a result which was not, of course, supported by the evidence either of them gave in 2005 and not one either of them would welcome now. There is no suggestion in the court’s reasoning that this is a result it intended to achieve and, of course, it is not achieved in terms of the map attached to the court’s order.

[93] For these reasons, therefore, we considered it appropriate to affirm the boundary between crofts 6 and 7 to be where shown on the map attached to the 2005 order.

The western boundary

[94] That being the case there is no need to change the western boundary, which the 2005 court held ran parallel to and at a distance of 60 metres from the eastern boundary. As explained at the outset of the hearing this is not an appeal against the 2005 decision nor a rehearing of the whole case. All we are entitled to do in this hearing is (1) resolve the conflict between the line of the pegs and the line of the eastern boundary on the plan and (2) fix the north and south boundaries.

[95] Mrs O’Connor made it clear at the hearing before us that she continues to dispute the western boundary of croft 7 as fixed in 2005 but the court gave cogent reasons for its decision, preferring Mr MacLellan’s evidence to Mrs O’Connor’s, and that decision has not been appealed nor has any new evidence emerged since then which would justify a rehearing. Mrs Schmoller did not give evidence in 2005 but her evidence to us seemed to add nothing new to the information which was before the court then. It did not go into great detail about matters and was largely about the route taken by her family from Acarsaid to Coilleag. Nothing in Mrs O’Connor’s own evidence in the present application was different from what she told the court in 2005. Nor is there any new documentary evidence. In particular the estate plan, the original of which was produced for us by Amanda MacMillan appears to be the same plan as was before the court, as production 24, in the 2005 case. Accordingly the boundary between croft 7 and 8 remains as fixed by the court in 2005.

The northern boundary

[96] Whereas it is plausible that croft 7 extends to the boundary of Mrs MacLeod’s croft, 3 Coilleag, Mr MacKinnon was clear that he was not claiming as part of his croft the area through which the path (referred to in the evidence both in 2005 and before us as “the right of way”) runs. Accordingly we have fixed the northern boundary of croft 7 so that it runs along the southern edge of the path shown on the plan attached to our order.

The southern boundary

[97] There is no dispute that the southern boundary of croft 7 is with the common grazings. Production 42 establishes for us where that boundary is. That has been replicated in the plan attached to the present order.

Decision

[98] For the foregoing reasons we affirm the western and eastern boundaries of croft 7 to follow the lines fixed by the court in terms of the plan attached to its order in 2005 and have now fixed the northern and southern boundaries of the croft as already described.

[99] The effect of our decision is that part of the land registered to Mr and Mrs O’Connor in terms of their Land Certificate and part of what is registered in the Crofting Register as part of croft 8 is in fact part of croft 7. Mr MacKinnon will therefore be entitled to apply to Mr and Mrs O’Connor for the purchase of this area of ground and, failing their agreement, apply to the court for authority to do so. An alternative would be for Mr and Mrs O’Connor to re-convey it to South Uist Estates Ltd, as they may have to do in relation to any encroachment on the common grazings such as was described by Mr Bridge. We understand from his evidence that the small part of Mr MacKinnon’s feu, or intended feu, which has been found to be part of croft 8 is being dealt with by a process of rectifying the Land Register. The other result is that the entry for croft 8 in the Crofting Register has to be rectified and our order, which we are intimating to the Keeper of the Crofting Register, does so in respect of the boundary with 7 Coilleag. The entry may also require to be modified in relation to the boundary of croft 8 with common grazings if the evidence as to encroachment given by Mr Bridge is correct. But this case is not concerned with that.

Expenses

[100] Following our usual practice we have allowed 21 days for parties to lodge written motions and submissions on the question of liability for the expenses of the application.