Decision of the Scottish Land Court

Kenneth John Macaulay (Applicant) v Iain D M Macleod & Others (Respondents)

Case reference SLC 95/14
before
Lord Minginish, Chairman, and Mr Angus Macdonald
14 July 2015

Introduction

[1] This is an application by Mr Kenneth John MacAulay, tenant of 20 Knock, Carloway, Isle of Lewis, for an order for modification of an entry made in the Crofting Register by his neighbour, Mr Iain Duncan MacAulay MacLeod, the tenant of 21B Knock. The application is made in terms of section 14(1) of the Crofting Reform (Scotland) Act 2010 (“the 2010 Act”). Croft 21B Knock lies to the west of 20 Knock and the boundary between them has been litigated at various stages over the last 105 years. Happily the advent of the Crofting Register offers the prospect of being able to resolve disputes of this kind once and for all.

Background

[2] The boundary was first litigated in 1908-1910 before the original Crofters Commission, predecessors of the Scottish Land Court.

[3] What was in dispute then (Application RN 1618) was an area of three quarters of an acre of ground lying to the south east of Croft 21 (Croft 21 appears, at some point over the intervening period, to have been divided into 21A and 21B). At that time the tenant of 21 was Mr Arthur MacArthur and the tenant of number 20 was a Mr Norman Macdonald although the croft seems to have been occupied by a Mrs John Macdonald. In that case Mr MacArthur failed in his attempt to prove that the area in dispute was part of his croft. The Commission’s order is dated 30 April 1910 and is production 7 in the present case.

[4] The same question was sought to be re-litigated before this court in Application RN2637 in 1920. At that time the tenant of 21 was Mr John MacArthur, son of said Arthur MacArthur. In addition to claiming again the area referred to above, there was a dispute about the northern part of the boundary between the two crofts. Since the first question in the case (the three-quarters acre area) had already been decided, the court, in its order of 19 February 1921, refused to re-open that question. So far as the northern part of the boundary is concerned, it was held to be an open ditch or drain running between the holdings at their northern end. The tenant of number 20 at that time was a Mrs Catherine MacDonald, whom we understand to have been the daughter of Mr Norman MacDonald, the tenant at the time of the 1910 litigation. Production 8 is a copy of the court’s order and note from that litigation.

[5] By 1959 the tenant of croft 21 was another Arthur MacArthur and he applied to the court for an order fixing the boundary between his croft and croft 20, then occupied by a Miss Christina MacDonald. In the resulting litigation (RN8133) a Divisional Court, by an order dated 13 November 1959, fixed the whole boundary in terms of the following order:-

“Find that the boundary between the said crofts runs from the sea along the line of the open ditch or drain referred to in Application Ross RN2637, then in a straight line, marked with stones infixed in the ground at intervals in the presence of parties at the inspection on 28 October 1959, to a point (marked with a stone) approximately one yard to the west of the strainer which stands a little to the north of the top of a rocky knoll and from there in a straight line also marked with stones as aforesaid to a point four feet to the west of the eastmost post of the gate at the public road”.

No map or plan accompanied the court’s order, which is production 9.

[6] On 17 February 2014 the present respondent had croft 21B registered in the Crofting Register under registration number C69. Production 3 is a copy of that entry. Mr MacAulay, in this application, challenges the boundary between the two crofts as shown on that entry. The extent of his challenge is shown on production 2, an aerial photograph. On that photograph the line of the fence which presently forms the de facto boundary between the two crofts is seen as a white line, running broadly north-south. What Mr MacAulay contends to be the true boundary in terms of this court’s 1959 order is marked in red and lies to the west of the fence line, following a line marked A-B-C.

[7] We heard the application at Stornoway Sheriff Court on 21 April 2015 when the parties represented themselves. They called no witnesses. Mr Simon Fraser, solicitor, Stornoway, factor of the Carloway Estate, later informed the court that he had intended to be present at the hearing lest the court should require his assistance but explained that he had been unexpectedly admitted to hospital that day. We subsequently attempted to take Mr Fraser’s evidence by way of interrogatories in terms of rule 38 of our rules but his continued ill-health has sadly prevented this. So we have only the evidence of the parties.

Mr Kenneth John MacAulay (86)

[8] Mr MacAulay gave evidence that he had been the tenant of number 20 since his mother’s death in 1983 and that he had taken up residence there in 1984. His mother was Mrs Isabella MacAulay and she had succeeded her sister, Miss Christina MacDonald, who had been tenant in 1959.

[9] When he had taken over the tenancy there was a fence running along between the two crofts. He did not know when a fence had originally been built along this line but the present fence followed, more or less, the line of the fence that had been there in 1984.

[10] Mr MacAulay identified production 2, the aerial photograph, as having been lodged by himself and as being based on an IACS map of number 20. The photograph/map showed the division of number 20 into different parcels for IACS purposes. The white line running north/south at the west of croft 20 represented the present fence. The line of the fence had not changed since 1984. The part nearest the road (what Mr MacAulay referred to as “the top part”) had been replaced when Mr MacLeod had taken over the tenancy of 21A. The stretch replaced was that between the boundary of field 4 shown on production 2 and the public road. It had been done shortly after Mr MacLeod had taken over the tenancy.

[11] It was Mr MacAulay’s position that the north/south white line, in other words the line of the present fence, did not accurately depict the boundary between the crofts as fixed by the court in 1959. In his submission the court’s order involved taking a straight line from the rocky knoll referred in the order southwards to the public road. In his submission the rocky knoll referred to in the court’s order was one to the north of the fence running across croft 20 and forming the northern boundary of field 4 on production 2. He had marked with the letter B where he thought the rocky knoll being referred to was and had drawn a line from there to the public road, ending at the letter C. That line was the true boundary. Asked whether we would, at inspection, find evidence of stones fixed by the Land Court running along that line, Mr MacAulay could not say. He explained that he had not inspected that area. It was, therefore, simply the wording of the Land Court’s order which made him think that the boundary was as shown at B-C on production 2. He had not carried out any investigation along this line. He said that he would not know what to look for and that since 1959 was over 60 years ago the stones, if any, were probably overgrown.

[12] The court then took Mr MacAulay through the terms of a letter dated 15 December 2014 (production 6A) from Mr MacLeod to the court referring to a meeting which, according to the letter, had been held in about 1986 when the two parties and Mr Simon Fraser, as factor of Carloway Estate, had walked the boundary of the crofts with a view to the dispute about the boundary being resolved. Mr MacAulay could remember a meeting with Mr Fraser being present and the matter being discussed. He remembered that Mr Fraser could not decide whether it was the strainer at the bottom of the rocky knoll or the strainer at the top of the rocky knoll which should be moved one metre westward. He could not remember Mr Fraser having come across marker stones. He remembered Mr Fraser saying that the custom had been to put bits of coal under the marker stones to distinguish them from other stones, but he had no recollection of Mr Fraser identifying any boundary stones.

[13] Asked about the strainer at the public road, Mr MacAulay said that he could not be sure but he thought that the strainer which was presently there was probably in the same position as the strainer had been in 1959. Asked if the gate referred to in the court’s 1959 order was still there, he said that there was a gate on croft 21A but he did not think it coincided with the description in the court’s order and he thought it might have been erected later. Asked if we were likely to find the eastern post of the gate referred to in 1959, Mr MacAulay doubted whether we would. But there was a strainer where the fence met the road. He was not quarrelling with the location of that strainer: it was the line of the fence from the rocky knoll to the strainer which was wrong.

[14] Reverting to the terms of said letter, Mr MacAulay could not remember it being said at the meeting with Mr Fraser that the fence encroached several feet into croft 21B. He had not been consulted in any way when the fence had been replaced by Mr MacLeod but he thought that the replacement followed, more or less, the same line as the previous fence. It would not, however, be correct to say that he had approved the replacing of the old fence with a new fence on the same line.

[15] As to how matters had been left following the meeting with Mr Fraser, he thought things had been left undecided. He admitted that he had seen the replacement fence going up and that he had not objected. He explained that he thought an objection would not have any effect. Mr MacLeod had been fully convinced that that was where the boundary was and therefore that was where the fence was going to go. Asked about the statement in said letter that “the fence from the strainer at the top of the hill to the road was erected on the new line by representatives of 20 Knock” (we take that to be a reference to the fence which was replaced by Mr MacLeod), Mr MacAulay said that he could not prove otherwise because he had not been at home when the fence had originally been erected. He accepted that it was, therefore, possible that the fence replaced by Mr MacLeod had been built by representatives of 20 Knock, but he was not sure.

[16] As to the line of the boundary fixed by the court in 1959, that was the true boundary. It may not be possible to build a fence along the whole line of that boundary – it might be impossible at a certain point – but that was the line of the true boundary. The area in which he thought it might not be possible to build a fence along the line of the true boundary was a rocky area between the rocky knoll and the strainer at the road. He explained that the land was quite flat at each end of that stretch but hilly in between.

[17] In cross-examination by Mr MacLeod, it was put to Mr MacAulay that he had signed Mr MacLeod’s application form for a fencing grant, consenting to the erection of the fence. He had no recollection of signing such a form and did not think it likely that he would have signed it because he was in dispute with Mr MacLeod as to where the fence should be. He denied that Mr Fraser had pointed out any boundary stones.

[18] Mr MacLeod put production 10 to Mr MacAulay. This, he explained, was a document given to him by the previous tenant of croft 21, Mr Arthur MacArthur, and written in or around 1986. Mr MacAulay said that he did not understand the document at all. He accepted that Mr MacArthur would have been present at the Land Court hearing of 1959.

[19] In conclusion, he said that his position was that he wanted a finding in accordance with the directions contained in the court’s order of 1959: a straight line from the rocky knoll to the road.

Iain Duncan MacAulay MacLeod (57)

[20] Mr MacLeod explained that he had become tenant of 21B Knock around 1985. He was also the tenant of 21A but it did not feature in this dispute. The previous tenant of 21B had been Mr Donald John MacArthur. Mr MacArthur was a distant cousin of his and it had been a family assignation.

[21] When he had acquired the tenancy of 21B it had been a bareland croft. He had built a house on it about 25 years ago. He had worked the croft ever since acquiring the tenancy; he had fenced, drained and stocked it.

[22] When he had acquired the tenancy, in 1985, he had known nothing of a dispute as to this boundary. He had become aware of a difficulty only when he approached Mr MacAulay with a view to repairing the boundary fence, which, by that time, was falling down. He had applied for a grant to assist with the erection of the fence and the application form required the signature of the neighbouring tenant. Although Mr MacAulay denied it, he had in fact signed the form. It was, however, fair to say that, despite signing the form, Mr MacAulay had made it clear that he was not happy about the boundary. Mr MacLeod had asked him for evidence to support where he was saying the boundary was but Mr MacAulay had not produced any. He himself had therefore written to the Land Court and got copies of the 1910, 1921 and 1959 judgments. These showed that there had been a dispute about this boundary for over 100 years.

[23] The whereabouts of the boundary having been put in question by Mr MacAulay, Mr MacLeod had spoken to the previous tenant and he in turn had contacted his brother, Arthur MacArthur, who had responded with production 10. Mr MacAulay must at that time have been in touch with the Land Court and with Mr Fraser because Mr Fraser had contacted Mr MacLeod and arranged for the three of them to walk the boundary. This had surprised Mr MacLeod because Mr MacAulay had not previously wanted Mr Fraser involved. In any event, they had walked the boundary and Mr Fraser had taken great pains to show the parties the boundary stones. Underneath each stone was a mark in the shape of a cross cut into the ground. Mr Fraser had identified a number of these along the line of the fence up to the top of the hill from the sea side. Having come to the top of the hill it was seen that there was an area of encroachment into 21B. Evidence was seen of a previous fence. At that point Mr MacAulay had said that he was satisfied and went back to the house without completing the walk along the boundary to the road. Mr MacLeod did not think that they had found any marker stones between the strainer at the top of the hill and the road. The fence was meant to be in a straight line but it deviated into 21B. That was for reasons that would become clear at our inspection.

[24] Referred to production 2, Mr MacLeod thought that the rocky knoll referred to in the 1959 decision was at the point where the two fences (the boundary fence and the fence across the top of field 4 on croft 20) met, not at point B on Mr MacAulay’s aerial photograph. The line of the north-south fence looked straight on production 2 but the scale was too small to show deviation. Mr MacLeod made reference to the road having been widened and a culvert having been created. The strainer at the road had then been in the middle of the culvert, so it had had to be moved. He said that would have been in 1959 and done by Mr MacAulay’s predecessors as tenants of croft 20. Mr John Morrison of 22 Knock had carried out repair work to the fence and he had told the witness about certain issues of encroachment.

[25] Referring to production 10, it represented Mr Arthur MacArthur’s understanding of what had happened in 1959. Arthur MacArthur had been present during the court hearing and production 10 recorded his recollection that the court had asked him whether he would be prepared to concede a few inches of ground to the MacAulays. He had agreed and the line of the boundary had been fixed to come to a point three feet from the gate referred to in the court’s order. Mr MacLeod acknowledged that the court’s order referred to a distance of four feet. Production 10 recorded that the boundary had been redefined and adjustment made in the presence and with the consent of all parties. Following upon that agreement, again as recorded in production 10, the MacAulays had erected a fence along the line marked by the court to a point three feet north of the gate at the road. Production 10 had been prepared in 1986, at the time of Mr Fraser’s visit. What it all came to was that the present fence ran along the boundary fixed by the court in 1959.

[26] The witness himself had replaced the southern section of that boundary after the 1986 meeting with Mr Fraser. That would have been from a point approximately half way between A and B in Production 2 all the way down to the road, The line of that fence was the line he had used for registering his croft in the Crofting Register.

[27] In cross-examination Mr MacAulay asked Mr MacLeod when John Morrison had told him about his involvement. Mr MacLeod replied that that would have been in 1986. Mr MacAulay asserted that Mr Morrison had not had any involvement with 20 Knock beyond 1966 or 67. Asked whether Mr Morrison was a relative, Mr MacLeod thought that he could be a distant relative. Mr MacLeod explained that he had not called Mr Morrison as a witness because he was not in good health.

[28] Mr MacAulay put it to the witness that it was strange, had he (Mr MacAulay) been in agreement with the line of the fence, that he should have written to the Land Court in 1986 to register an objection. Mr MacLeod repeated his earlier evidence that Mr MacAulay had signed the grant application form, confirming his consent, without which he (Mr MacLeod) would not have been able to get a grant.

[29] Mr MacLeod disagreed with Mr MacAulay as to his identification of the rocky knoll referred to in the 1959 decision. We would have to decide the matter for ourselves at inspection.

[30] The evidence having been concluded, we gave parties the opportunity of saying anything further by way of submission but neither had anything to add.

Inspection

[31] We carried out an inspection, for the most part in the presence of the parties. We began around point A on production 2 (shown in photograph 1 attached to this judgement), where a fence now runs along the line of the ditch or drain which was determined to be the boundary in 1921. From there we moved generally southward, following the line of the present fence. Mr MacAulay pointed out what he believes to be the rocky knoll referred to in the 1959 decision. It is shown in photograph 2. The strainer to the west of it represents approximately point B on production 2 although point B is actually slightly to the west of the strainer.

[32] We then followed the fence southward. Photographs 3-6 show, sequentially, stretches of the fence between point B and the junction of the present boundary fence with the fence seen running across the top of field 4 on production 2, which is shown in photograph 7. The line of the present fence from the shore to the field 4 junction was found to be a (more or less) straight line, as shown on production 2.

[33] Stones were found in proximity to the line of the fence at various locations along this stretch of the fence, as shown in photographs 2, 3, 4 and 7, but the general terrain all around is rocky and there are stones in other locations too, not just along the line of the fence. Mr MacLeod produced a spade and we were able to lever some stones out of the ground to look for the marks spoken to by him in evidence. We found, along this stretch, two stones which had underneath them markings apparently gouged from the earth. These markings were not in the shape of a cross but they looked as if they may have been formed with a tool such as a gardening trowel or the like. They certainly did not correspond to the shape of the stone underneath which they were located and there was no other apparent natural explanation for their existence. Attempts to photograph these indentations produced poor results.

[34] From the field 4 junction we continued southwards back to the public road. Photograph 8 is a view looking generally northwards with Mr MacAulay’s rocky knoll in the distance, the junction with the field 4 fence in the mid-distance and the present boundary fence running, (generally) southward in the foreground. Having followed a straight line from the shore to the field 4 boundary, the present fence then veers westerly and continues more or less straight until it meets the public road. Photograph 9 shows the junction of the two fences with what Mr MacLeod says is the correct rocky knoll to the right. Parties are agreed that the point at which the boundary fence meets the road (shown on photograph 11) represents the southern end of the boundary.

[35] A feature of this stretch of the boundary is that to the west of the present fence is a large rocky outcrop, seen from the boundary summit looking south in photograph 10 and looking north from the road in photograph 11. Fencing across that outcrop would be impossible.

Discussion

[36] Our task in this case is to determine the whereabouts of the boundary fixed by the court in 1959. The critical part of that is fixing the location of “the strainer which stands a little to the north of the top of a rocky knoll”. The problem is that there is more than one rocky knoll in this area. Mr MacAulay’s is certainly one of them. A “rocky knoll” is exactly how one would describe the feature he identifies and were there no others in the area he would obviously be right. But there are others and one of them is just south-east of the junction with the field 4 fence. It is shown in photograph 9. It fits the description at least as aptly as Mr MacAulay’s preferred location. There is a strainer a little to the north of it although it is difficult to know what was meant by the court in 1959 by referring to the strainer as being to the north of the top of a rocky knoll; a difficulty which applies equally to the rocky knoll at point B. The evidence as to rocky knolls is, therefore, on its own inconclusive.

[37] What of the stones? The court in 1959 said that the boundary continued from the line of the ditch referred to in 1921 “in a straight line, marked with stones infixed in the ground at intervals … to a point (marked with a stone) approximately one yard to the west of the strainer which stands a little to the north of the top of a rocky knoll”. Inevitably many of the stones referred to will now have become overgrown. It is also possible that other stones have been placed along the boundary in the interim for other purposes, such as reinforcing the fence or supporting strainers (as seen, for example, in photograph 7). The row of stones shown in photograph 4 cannot be (not all of them at least) the stones infixed by the court in 1959 since the reference in the court’s order is to stones having been infixed “at intervals”.

[38] We have no reason to doubt Mr MacLeod’s evidence that Simon Fraser, during the tri-partite meeting of 1986, pointed out stones which had markings underneath which he (Mr Fraser) thought typical of markings used to distinguish boundary stones from others. Mr MacAulay did not remember that happening, certainly, and denied that any such had been pointed out to him. Regrettably Mr Fraser has been unable to assist on this important point. But at inspection we saw stones with otherwise unexplained markings underneath for ourselves. These stones are situated within the middle section of the boundary which the court was fixing in 1959. We therefore accept, on a balance of probabilities, that they are two of the stones infixed by the court in 1959. That is strongly supportive of the rocky knoll being referred to in 1959 as being the one at the junction with the field 4 fence and we so hold.

[39] That in itself would be conclusive of the matter but it is also supported by other evidence as to the history of fences along this stretch of the boundary.

[40] The starting point here is that both parties agree that the present fence follows the line of the fence that was there in the early to mid 1980s, when they became tenants of their respective crofts. Moving on from there, Mr MacLeod gave evidence that the fence which he had replaced had followed the boundary fixed in 1959. His basis for saying that was production 10, a handwritten note from Mr Arthur MacArthur who was tenant of number 21 in 1959. Arthur MacArthur had, according to Mr MacLeod, attended the Land Court hearing in 1959. His note contains an annotated diagram showing a realignment of the boundary from the “rock” (which we take to mean the rocky knoll referred to by the court) to the road, so as to swing it westward, into croft 21, giving croft 20 an extra three feet where the realigned boundary joined the public road. Referring to the new boundary Mr MacArthur writes:-

“[S]aid new boundary erected sometime afterwards, when adjustment had been made by [the] court, in the presence of all parties concerned; boundary erected by the Macaulays their own part of boundary ; in line marked by court 3 ft north of gate.

The Land Court officers, when redefining the angle [unclear word] of the fence, asked me, would I allow a few inches to the Macaulays. I said I would, such to allow them this 3 ft of the gate and the angle section all the way from the rock strainer to the gate.

This is to confirm that the said boundary had been redefined, and adjustment made, in the presence [of], and agreed by all parties, marked by the court.

A. Macarthur”

[41] It was apparent on the ground, at our inspection, that there were two good reasons for the boundary veering westward at what is now the junction with the field 4 fence. One was in order to achieve a depth of soil sufficient for fencing. The other was to take the fence away from the higher ground of croft 20 so that sheep could not simply jump over it onto croft 21. Both of these considerations can be illustrated and understood very clearly from photograph 9.

[42] Mr MacAulay accepted that it was possible that the fence which Mr MacLeod had replaced had been erected by his predecessors as tenants of number 20. As he put it, he could not prove otherwise because he was not at home when it was erected. There is, therefore, no evidence to set against that of Mr MacArthur’s note, as spoken to by Mr MacLeod. We accordingly hold it proved that the fence which Mr MacLeod replaced was, so far as the stretch of it from “the rock” to the road is concerned, erected by the tenant of croft 20 in accordance with what this court decided in 1959. A typical stob and wire fence erected soon after 1959 would certainly be at the end of its useful life by the mid-1980s.

[43] We have also considered the feasibility, as a fencing line, of the boundary argued for by Mr MacAulay. He himself acknowledged that part of it was not fenceable. That was the middle part, which was, he explained, rocky. It was not easy, on the ground at inspection, to identify where exactly the B-C line runs. It would certainly have to avoid the rocky expanse shown in photographs 10 and 11. Production 2 may suggest that it does so, by-passing it to the west. But, so far as we could identify it on the ground, the B-C line did not appear to us to be as feasible a fencing line as the present one.

Decision

[44] This is not an ordinary croft boundary dispute but an appeal against the entry for croft 21 made in the Crofting Register. Mr MacLeod gave evidence that this entry reflects the boundary as presently fenced. There was no evidence to contrary effect. Since we hold the boundary as presently fenced to be the one fixed by the court in 1959 the appeal is refused. Section 14(4) of the 2010 Act allows the Court only to (a) make an order that the entry in the register be removed, (b) make an order that the entry be modified, or (c) make no order. So, in this case, we have made no order.

Expenses

[45] We do not always award expenses in croft boundary cases; for instance where there is legitimate doubt as to where the boundary is. That may well be the case here. The boundary as fixed in 1959 is not easily identified on the ground today. But rather than close off any question of expenses at this stage we have followed our more usual practice and allowed parties to lodge any motions or submissions they want to make on expenses within 28 days.