Whyte Fraser & Co Solicitors are delighted to have successfully represented the Defender in the Sheriff Court boundary dispute Simon Tilston and Wendy Tilston v, Alexander Fleming.
Summary
Neighbours, the Tilstons and Mr Fleming, disagreed over the location of part of the boundary line between them. The area in question took in a public road, a wall, gatepost and fence. There was also dispute over whether certain wall and fence features had altered in size, location and shape over years. The Tilstons sought declarator that the correct location of the boundary was as described by them.
Parties and surveyors gave evidence at Proof (in this case a hearing on fact and law).
The court was asked to determine whether the Tilston’s title deeds included common rights over relevant sections of wall, gatepost and fence.
Conclusion
The court had to consider whether one of the neighbouring boundary lines was denoted by the location of certain physical features in situ on the ground but which were not referred to in the properties’ Land Register description and where no physical features were narrated. The court considered that it would be innovating if it granted the order sought by the Tilstons.
The court accepted the evidence of both land surveyors that the area of dry-stone wall and gate post and the wooden fence in question were within the title of Mr Fleming.
The court stated that the boundary of two contiguous properties cannot lie on land that is wholly within the title of one of those properties, particularly when physical features said to be on the boundary are more than a few centimetres or inches wholly within the title to that property.
The Tilstons were asking for an Order from the court which stated precisely where the boundary between the properties lay with reference to features on the ground. The court also decided that the Ordinance Survey accuracy tolerance arising from the use of scale made no difference to that situation and that there was a material uncertainty as to whether the solid black line in the title plan depicted a section of the stone wall in its current location.
The Pursuers’ case was that although the said section of the dry-stone wall, gate post and wooden fence lay within the title of one property the Ordnance Survey tolerances could mean that they actually lie even further within the title of that property and the Land Register guidance states that tolerance must be taken into account when determining the legal boundary.
The Court did not accept the Tilston’s argument that it was more likely than not that the legal boundary between the properties was the centre line of the said section of dry-stone wall, gate post and fence; it was equally more likely than not that the legal boundary did not run along same.
The court took the view that the declarator sought by the Pursuers was specific in its terms and, if it were to be granted, it would be more specific and prescriptive than the Land Register title plans for the properties. This would, therefore, alter the status quo and, as a result, it could not or should not grant the declarator sought when such uncertainty existed. Accordingly, the declarator sought was refused.
l features said to be on the boundary are more than a few centimetres or inches wholly within the title to that property.
The Tilstons were asking for an Order from the court which stated precisely where the boundary between the properties lay with reference to features on the ground. The court also decided that the Ordinance Survey accuracy tolerance arising from the use of scale made no difference to that situation and that there was a material uncertainty as to whether the solid black line in the title plan depicted a section of the stone wall in its current location.
The Pursuers’ case was that although the said section of the dry-stone wall, gate post and wooden fence lay within the title of one property the Ordnance Survey tolerances could mean that they actually lie even further within the title of that property and the Land Register guidance states that tolerance must be taken into account when determining the legal boundary.
The Court did not accept the Tilston’s argument that it was more likely than not that the legal boundary between the properties was the centre line of the said section of dry-stone wall, gate post and fence; it was equally more likely than not that the legal boundary did not run along same.
The court took the view that the declarator sought by the Pursuers was specific in its terms and, if it were to be granted, it would be more specific and prescriptive than the Land Register title plans for the properties. This would, therefore, alter the status quo and, as a result, it could not or should not grant the declarator sought when such uncertainty existed. Accordingly, the declarator sought was refused.