OUTER HOUSE, COURT OF SESSION [2012] CSOH NUMBER52
A579/10	OPINION OF LORD MATTHEWS in the cause DAVID BARCLAY SMITH Pursuer; against JAMES CROMBIE AND MRS RITA CROMBIE Defenders: ­­­­­­­­­­­­­­­­­________________

Pursuer: Bevan, Advocate; Lindsays, Solicitors, Edinburgh

Defenders: Dunlop, Advocate; HBJ Claims Solutions, Solicitors, Glasgow

[Date of Issue]21 March 2012

Introduction
[1] This action relates to a boundary dispute between the pursuer, who lives at No 77 Sixth Street, Newtongrange and the defenders, who live at No 75. In essence the pursuer claims that the defenders, and in particularly the first defender, removed a fence which divided the garden ground to the rear of the properties and replaced it with an extension and fence which wrongfully encroached onto his land. He has a number of conclusions for declarator in relation to the location of the boundary between the two properties and for unlawful encroachment. He seeks removal of the extension and fence and the erection of a new fence as well as the expenses of the action.

[2] The pursuer originally had a conclusion for damages in the sum of £2,000 but at the conclusion of the proof his counsel indicated that he was not insisting in it.

[3] The pursuer's evidence in the case was taken on commission and I have had regard to the report of that commission. I will deal with that briefly in due course.

Background
[4] The pursuer is the heritable proprietor of the subjects known as 77 Sixth Street, Newtongrange conform to Feu Disposition in his favour dated 2^nd December 1985 and recorded in the Division of the General Register of Sasines for the County of Midlothian on 11^th December 1985. The subjects are described in the Feu Disposition as being:

"ALL and WHOLE that area or piece of ground lying on the South-east side of Sixth Street, Newtongrange, in the Parish of Newbattle and County of Midlothian bounded as follows, videlicet:- on or towards the North-west by Sixth Street, aforesaid; on or towards the North-east and the South-east by the mutual lanes aftermentioned; and on or towards the South-west the South-east again and the South-west again by subjects forming Number Seventy-five Sixth Street, aforesaid; all as the said piece of ground hereby disponed (hereinafter referred to as "the feu") is delineated in red and coloured pink on the sketch or plan thereof annexed hereto and signed as relative to these presents and forms part of the Lands and Estates in said County belonging to the Superior".

[5] The defenders are the heritable proprietors of the subjects known as 75 Sixth Street, Newtongrange conform to Disposition in their favour dated 3^rd September 1992 and recorded in the said Division of the General Register of Sasines on 17^th September 1992. They are more particularly described in and disponed by a Feu Disposition in favour of George Henry Gilmour and Mrs Isobel Walker dated 15^th September 1984 and recorded 28^th September 1984. In said Feu Disposition, they are described as being:

"ALL and WHOLE that area or piece of ground lying on the South-east side of Sixth Street, Newtongrange, in the Parish of Newbattle and County of Midlothian bounded as follows, videlicet:- on or towards the North-west by Sixth Street, aforesaid; on or towards the North-east, North-west again and North-east again by the subjects forming number Seventy-seven Sixth Street aforesaid; on or towards the South-east by the mutual lane aftermentioned; and on or towards the South-west by the subjects forming Number Seventy-three Sixth Street, aforesaid; all as the said piece of ground hereby disponed (hereinafter referred to as "the feu") is delineated and coloured pink on the sketch or plan thereof annexed hereto and signed as relative to these presents and forms part of the Lands and Estates in said County belonging to the Superior".

[6] The pursuer, who is 95 or 96 years of age worked as a Chief Electrical Engineer for many years for the National Coal Board and first occupied No 77 Sixth Street in 1970 before purchasing it in 1985. At that time, No 75 was owned by George Henry Gilmour and Mrs Isobel Walker. I was satisfied on the evidence that at that time the rear gardens of the properties were separated by a hedge. In June 1986 there were discussions between the pursuer and Mrs Walker, with the assistance of Messrs Gray Muirhead WS, Solicitors, Dalkeith, as a result of which an agreement was reached between them. That agreement is encapsulated in No 6/10 and 6/11 of process, letters from Gray Muirhead WS, to the pursuer dated 25^th and 30^th June 1986 respectively. Inter alia it was agreed that the boundary line between the properties was to be a straight line from the edge of the pointing on the back wall to the far corner of the first shed and thereafter continuing on the same line to the back wall of the garden. A new boundary fence was to be erected at the sole cost of Mrs Walker and thereafter to be mutual, said fence to be of a substantial nature but no more than 5 feet high. The remaining hedge was not to be removed until it could be replaced immediately with the new fence. It was agreed that the boundary line between the two properties should at no point be less than 10 inches from the plumb line from the roof of the pursuer's garage.

[7] The hedge was duly taken down and a fence erected in its place in accordance with that agreement. The line of the fence is a matter of dispute between the parties as is the question whether it reflected the true boundary between the properties. In any event, in circumstances which were explored in the evidence the first named defender removed the fence in or about September 2007 and thereafter built an extension to the rear of his property and erected a new fence.

[8] The pursuer claims that the old fence was demolished without his permission and that the new erections encroach, at least to some extent, upon his property. The defenders on the other hand claim that there had been discussions between the parties prior to the removal of the fence and that the new erections lie wholly on their side of the boundary. Furthermore they claim that the pursuer's garage in fact encroaches on their property. It is against that basic background that I heard evidence and submissions.

The evidence
[9] The first witness called by the pursuer before me was Colin Jeffrey Shepherd. Mr Shepherd was a 68 year old retired coach driver who had lived at No 73 Sixth Street, Newtongrange since July 1984. The pursuer at that stage lived at No 77 and the witness had known him for over 30 years. He had looked after him and done several odd jobs for him as well as taking him out. He said that he was familiar with the pursuer's house and garden. When he moved in in 1984 there was no one living in No 75 but Mrs Walker moved in in or around September or October of that year. The boundary between Nos. 75 and 77 was a hedge which had been there for a long long time. In 1986 Mrs Walker asked the pursuer if she could take the hedge out and erect a fence. Gray Muirhead drew up what should be done and the fence duly replaced the hedge in June 1986. Mr Shepherd was asked if the fence followed the line of the hedge and said that Gray Muirhead stated that it had to be no less than 10 inches from the apex of the pursuer's garage if a plumb line was dropped straight down from the roof. The pursuer's garage was always in his own property. The witness knew this because he was involved in the discussions. In 1988 Mrs Walker sold her house to someone else and no objection was taken to the line of the fence. Neither was there any objection when it was sold in due course to the defenders in 1992. After the fence was erected and before it was demolished by Mr Crombie in 2007, its line was never changed. He did not see Mr Crombie removing the fence but became aware of it on the morning of Sunday 26^th August 2007. The pursuer had gone to Blackpool on holiday on the previous Saturday and the witness understood that a neighbour saw Mr Crombie taking the fence down as the pursuer was being driven away in the car. In any event, the witness approached Mr Crombie and asked what he was doing whereupon he was told to "fuck off" because it was nothing to do with him. The witness fetched the pursuer from Blackpool on 8^th September and made him aware what had happened. On his return the pursuer phoned the police but that had no effect. Mr Crombie just carried on with what he was doing. The pursuer told him that the police came and told Mr Crombie to stop work until the issue of the boundary had been settled and the pursuer contacted his solicitor on the Monday. The witness explained that he had been involved in everything the pursuer did but he was not there when the police were there. The solicitors first instructed seemed, according to the pursuer, to be long winded and he decided to change them. Efforts were made to come to an arrangement with Mr Crombie but he did not agree and he built an extension. In doing so he took about a metre of the pursuer's property. He was referred to 6/9 of process, a set of plans prepared by D M Hall and in particular to plan 2. He was also referred to a number of photographs contained in 6/7 of process, a report by Alan Jeffrey, of D M Hall, Chartered Surveyors. One could see the extension on the plan and an area 0.25 metres between the eastmost side of the extension and part of the pursuer's house which jutted into the rear garden. That was shown in photographs 1 and 2. Photograph 2 also showed the fence which was erected by Mr Crombie after he built his extension. It can be seen that it is slightly to the right, or east of the line of the extension. Mr Shepherd said that when they tried to negotiate they wanted Mr Crombie to take the fence down and put the first post approximately 4 to 6 inches to the left or west in order to be flush with the wall. He explained that when the new fence was erected it had the effect of putting the back end of the pursuer's garage into Mr Crombie's property as it was redefined by the erection of the fence. He was then referred to plan 1 in 6/9 of process. That plan showed the line of the timber fence erected by Mr Crombie. It could be seen that it ran at a slight angle to the right (the southeast). Photograph 3 showed the fence between the extension and the garage belonging to the pursuer. Photograph 4 showed how, when it reached the garage, a post had been put in and 3 pieces of timber nailed onto it so that Mr Smith could no longer get access behind it. Photograph 5 showed the southmost boundary of No 77 with white metal fencing above a red brick wall. The witness said that where the white fence finished on the left or western side of the photograph was where the original fence finished. About a metre of Mr Smith's property had been taken from him, as could be seen more clearly in photograph 6, which showed where the old fence met the back wall, namely where the white metal fencing ended above the orange/red brickwork. A white railing had been there as long as the witness could remember. Plan 1 showed where the current fence ran to the southwest corner of the garage and photograph 5 showed where the fence ran from that corner to the wall, encroaching on the metal fencing. Under reference to the first photograph he said that the fence ended at the house end where the paintwork changed colour. A better view of where the fence ended could be seen in the first photograph in 7/2 of process. The fence post would have been where the harling had broken off. Mr Smith told him that when he first approached Mr Crombie about removing the fence he got "short shrift". Before all this started Mrs Crombie used to clean Mr Smith's house and had a key. They got on alright. However, Mr Crombie walked in and accused Mr Smith of being nothing but an old "so and so", upsetting him. Mr Smith was 91 then. Mr Smith was never asked for permission to change the line of the fence. The witness would know if he had been approached. He visited Mr Smith every night and put him to bed if he was not alright. He discussed everything with the witness, who now had a power of attorney. He was then referred to No 6/8 of process, a photograph taken from Google Earth in 1999. One could see Mr Smith's property but, whilst the boundary was not particularly clear, it did show that Mr Smith's garage was in his own property and that the boundary was at an angle.

[10] In cross examination he said that although he did not remember the name of the people who lived in No 75 before Mr Crombie, he was aware that they did not object because the pursuer would have told him. He reiterated that as soon as the pursuer left for Blackpool Mr Crombie took the opportunity to take the fence down quickly. He agreed that the construction of the extension took about 8 weeks. Mr Crombie did not discuss the removal of the fence with the pursuer beforehand. The original fence had been a ranch type fence. He said that all the houses in the area were built around the turn of the century but he did not agree that they all had boundaries which were perpendicular to their rear walls. He conceded under reference to the plan attached to the Feu Disposition, No 61 of process that the boundary lines were straight.

[11] In re-examination he was referred again to the plan attached to the Feu Disposition. On looking at Fourth Street, it appeared that the boundary between Nos. 46 and No 48 was at an angle. The boundary between 91 and 93 Sixth Street was at an angle also, as was that between 99 and 101 Sixth Street.

[12] There was then evidence from Mr James Wood Watson. He was a 64 year old grave digger and had lived at no 79 Fifth Street, Newtongrange for 25 years. When he moved in the pursuer was already living at No 77 but he had known him before. From his house he was able to look into the pursuer's garden. Under reference to the Google Earth photograph, No 6/8 of process, he said that he lived diagonally across the crossroads from the pursuer. He was familiar with the pursuer's house and garden. When the witness moved in, the rear boundary between 77 and 75 Sixth Street was a fence. That fence was about 18 inches from the pursuer's garage and one could walk round the back of it whilst remaining within the pursuer's property for the purposes, for example, of painting. The pursuer could no longer get round the back of the garage to paint it. The Crombies moved in in 1992. At no time did the pursuer alter the original line of the fence. The witness did some work for the pursuer, helping him with putting in a kitchen. He was not aware of anyone having objected to the line of the fence before 2007. He would have heard if there had been any objections. The pursuer confined in him. He did not see Mr Crombie removing the fence but he was told about it by his wife, who had taken the pursuer to Blackpool. He understood that the pursuer told the police and they advised him to get a lawyer. He thought they also spoke to Mr Crombie but he just carried on with his building. He was referred to photograph 5 in 6/7 of process. He said that the south boundary of the pursuer's property was the white metal railing on top of the brick work. It could also be seen in photograph 6. The original fence ran up to where the white metal ended and the brickwork changed colour. At the other end it ended where the post had been removed from the harling, as shown in photograph 1. He understood that the pursuer tried to reach a compromise with Mr Crombie but it was refused.

[13] In cross examination he was referred to the plan attached to the Feu Disposition, 6/1 of process. It was put to him that to the naked eye the boundary between 75 and 77 looked like a straight line and he said that that depended and that it might be at a slight angle. In 6/8 of process, the Google photograph, the fence between No 77 and 75 appeared to run at an angle. The compromise which was suggested involved the fence being put back where it was previously and he agreed that if the land belonged to Mr & Mrs Crombie that would not be a good deal from their point of view.

[14] The last witness for the pursuer was Alan Robert Jeffrey, a Building Surveyor. He worked with D M Hall. In order to tell how wide the pursuer's garden was, based on the map attached to 6/1 of process, he would have to use a scale but it could be measured. The scale was 1: 1250. 6/7 of process included a letter written by him dated 6^th May 2011. The salient points of it are as follows:

"As requested, Mr Jeffrey visited the subjects on the 5^th May. The purpose of his visit was to check over the previous survey notes and plans that were prepared by our Mr Robertson who as you are aware has now retired.

As directed by you, Mr Jeffrey duly met Mr Shepherd on site. He also briefly spoke with Mr David Barclay Smith.

Mr Jeffrey's findings have been incorporated onto a plan, namely drawing No 4 dated 14 January 2009 & 5 May 2011.

This plan reflects the anomalies that exist in relation to the Ordnance Survey Plan which is attached to the Disposition of Mr Smith recorded in the Sasines Register. It also highlights various areas of encroachment that arise between both properties. We would explain as follows:-

1. The outer edge of the red line is the boundary as shown on the plan that is attached to the original disposition. We would point out that the dimension across the garden was plotted from the Ordnance survey Map as 6.5m.

2. The blue area is part of the front west-most bedroom accommodation of No 77 Sixth Street but you will note actually falls outwith the legal extent of the subjects. This situation basically highlights the inaccuracies of the Ordnance Survey Plan what is attached to the disposition.

3. Similarly the green area is actually accommodation within No 75 which is outwith their boundary but falls within the titled extent of No 77.

4. The cross hatched area shows the outline of the extension to No 75.

You will note that the extension has been constructed to the correct side of the centre line of the separating (sic) between both properties.

Notwithstanding part of the extension, cross hatched in yellow lies beyond the boundary line as shown on the plan attached to the disposition.

5. The remaining yellow area highlights the area that has been encompassed by the erection of a timber fence between the corner of the extension of No 75 and the corner of the garage owned by No 77.

A measurement was taking (sic) across the garden between this fence and the eastmost boundary of No 77 and was found to be 5.88m.

Other features on the plan are:

1. The line of the previous timber fence as described by Mr Shepherd and shown on the Google Earth download (copy attached) showing the property before No 75 was extended.

You will note that the line of this fence is not perpendicular to the rear of the property and we believe has been accurately portrayed by this photograph.

2. The faint grey lines basically show the outline of the external walls of No 77. These lines have been added to show the centre line of the separating wall that we believe should have been the true boundary between both properties.

3. Please note that the true position of the garage as plotted on site has been shown whereas the garage as defined on the Ordnance Survey Map has been shown using a green dotted line.

Another example of how inaccurate Ordnance Survey maps can be.

Several photographs were taken (sic) during Mr Jeffrey's visited (sic) and have been numbered and titled.

May we now refer to the report dated 30 March 2011 by McNeill Maguire & McCreath and to the orientation problems that were discussed during our meeting.

You will note on the plan attached to this report that there is a north point depicted.

We are off (sic) the opinion that the north point is facing the wrong direction. This would account for the problems we had with the orientation of some of the comments made in this report".

[15] 6/6 of process was a letter of 10 February 2009 by a Mr Michael Robertson, the person who had retired. He had drawn up plans and had taken notes with a view to doing the same exercise that Mr Jeffrey did but there was less information available then. He had drawn a plan with the line of the boundary as shown on the title deed. 6/9 of process was the plan referred to in Mr Jeffrey's letter and was completed on his behalf by a Peter McLaren. It was as the witness required it to be drawn. There were a number of anomalies in the title deed as reflected in the letter and the plan. The plan attached to the title deed did not reflect the ground on the site. According to the Ordnance Survey Plan, Mr Smith would have a garden 6.5 metres wide. If that were so, the boundary could not run out from the centre line between the houses. As I understood his evidence he said that the figure of 5.88 metres from the fence to the eastern boundary was close to the centre line of the two houses. The areas of encroachment internally showed that the Ordnance Survey Map was completely inaccurate. Plan 3 attached to 6/9 of process illustrated the point being made at paragraph 4 of 6/7. In other words it showed an encroachment of the extension into No 77, according to the Ordnance Survey Plan. The witness explained that the new fence encroached further the further away it got from the house. The Ordnance Survey Plan that formed the title was overlaid onto what was on the ground and the two were compared. The line of the previous timber fence as shown on the plan was deduced from information given by Mr Shepherd. The witness took the Google Earth download 6/8 of process. He said that it confirmed the line of the fence as indicated by Mr Shepherd. The plan showed faint grey lines indicating the outline of the external walls of No 77, which had been added to show the centre line of the separating wall which the witness believed should have been the true boundary between both properties. He did that because the centre line is usually the boundary. The original timber fence moved close to the dividing wall as it went towards the house. It was Mr Robertson who plotted the true position of the garage and that position was compared to the position of it as shown on the Ordnance Survey Map. The line of the original fence clearly passed the southwest corner of the garage. He was then referred to plan 2 in 6/9 of process. He said that the internal dwellinghouse was measured completely. On that drawing there is a blue line which showed inter alia the line of the boundary located correctly within the dwellings and thereafter in the line of the original fence. He said that if the defenders accepted that the internal blue line was correct then there was no doubt about the other measurements. It was based on a system called Promap, as I understood it. The witness took the photographs attached to 6/7 of Process on 5 May 2011. Photograph 1 was taken from the rear garden looking at the rear of the house down the side line of the extension. He found that the extension was on the correct side of the separating wall which divided the houses internally. From his previous findings, though, the Ordnance Survey based title plan was wider and would show that the extension was encroaching. According to the deed plan the pursuer's garden width was 6.5 metres but the plan wrongly demonstrated that the boundary ran straight out from the point where the internal division walls were. If that were the point of reference then the pursuer's garden would only be 5.88 metres. The figure of 5.88 metres on the plans was measured from the face of the fence where it met the extension and was more or less in line with the centre line. In other words if the line dividing the house was produced the fence was more or less on it. That seemed to me to be an important piece of evidence. He said that the place where the original fence met the back wall was pointed out to him by Mr Shepherd and was the black line to the side of the drain pipe shown in photographs 1 and 2. Photograph 3 showed the point from which the 5.88 metres was measured and photograph 4 showed where the new fence met the garage and where a number of timbers filled the gap between the fence and the garage. Photograph 5 showed the brick wall and railing at the bottom of the garden where it bounded the lane and photograph 6 showed where the south boundary met the timber fence. The witness measured the distance between where the original fence met the brickwork and where it started going round the corner on the plan. That was a distance of 4.06 metres. Generally speaking the Google Earth photograph bore out the pursuer's version of the old fence as it existed in 1999.

[16] In cross examination he was referred to 7/7 of process, a report by Lindsay Duguid, Chartered Surveyor, dated 19^th July 2011. In particular he was referred to a plan attached to that report. The house at No 77 was shown in blue, the front and rear gardens were in green and the garage was shown in light blue. The house at No 75 was shown in yellow and the garden ground was in darker green. The extension was in purple. Where the yellow met the blue inside the houses was the centre of the party wall. There were two black lines either side of where the colours met and they represented the internal facings of the walls. He agreed that the thick red line going round the outside of No 77 of his own drawing No 4 was what appeared on the plan attached to the title deeds. On site the position was different because the area shaded green on that drawing was in fact part of Mr Crombie's living accommodation and the area covered blue was part of the living accommodation of the pursuer. Thus if one put the plan attached to the title deed on top of what was on the ground the result was that part of the pursuer's bedroom fell into the defenders' property and part of the defenders' livingroom was in the pursuer's property. The witness was referred again to the plan attached to 7/7 and agreed that to the right hand side of the extension was shown a strip of green, which was part of the garden. Photograph 2 in 6/6 looked down the channel between the extension and part of the pursuer's property which extended into the garden. The witness agreed that he never saw the old fence. Both properties were around 100 years old and the Ordnance Survey Plan would have been prepared around 50 years ago. He reiterated that the extension was to the correct side of the separating internal wall. He also agreed that in the area the vast majority of properties had perpendicular boundaries running from the separating wall. He accepted that in drawing No 4 he plotted the Ordnance Survey Map from the titles and compared that to what one could measure on the ground. That was a comparison between the Ordnance Survey Plan and the original parts of the properties when built. The physical features of the original buildings had not changed. On revisiting the property there were no physical boundaries in place which had been there when the original buildings had been erected. The witness had taken no measurements in Mr Crombie's garden. He explained that triangulation involved using a three; four; five triangle to make sure that a line was straight. The witness agreed that he would accept the true boundary to be a perpendicular line following the centre of the party wall and that the dimensions in the Ordnance Survey Plan were wrong. Nonetheless on that plan the boundary appeared to be perpendicular from the rear of the properties. He agreed that he had not seen the previous fence and the line of it on his plan was drawn on the basis of other people telling him where it was.

[17] In re-examination he said that when he was on site and preparing the plan he used a measuring tape and a disto laser. The distance across the garden was a straight line and the distances taken by Mr Robertson on his measurements were triangulated. If the defenders had accepted his measurements were the internal walls there could be no doubt about his measurement of the boundaries. The length of the old fence was given as 14.6 metres and that was pretty accurate. He was asked why there would be a perpendicular boundary and he said that the deed plan showed it as being perpendicular. There were also other properties in the area which did not have perpendicular boundaries. He agreed again that he relied on information from Mr Shepherd to fix each end of the fence.

That was the pursuer's final witness and Mr Bevan tendered the report of the Commissioner as well as two sealed papers apart, A and B. There was no difficulty with them being opened up. The pursuer's case was then closed.

[18] The first witness called by Mr Dunlop was the first defender, James Ewan Campbell Crombie. He said that he was 62 years of age and had lived at No 75 Sixth Street for 19 years. When he moved in there was an old ranch type fence between Nos. 75 and 77. It ran from his back wall to the back garden wall. Photograph 6 of 6/7 showed the new fence which he erected. The old fence finished at the right hand edge of the fence above the white rails about 1 metre in from where the bricks changed colour. Photograph 2 was taken from the rear of the pursuer's garden. The new extension was harled and the new fence was next to it. It was erected in 2007. In photograph 2 of 7/2 of process the fence started where there was a black mark on the harling. It was a couple of bricks or so to the left of the drain pipe. The old fence was not straight. It went in a straight line from the house to the garage and then went round the garage before straightening up again.

[19] The extension was built from late September until November 2007. It was a dining/kitchen area. To the left of the extension there was an original outshoot which was the kitchen. It now all joined onto the extension. He was asked whether the architect who designed it identified where the centre of the party wall was. Looking at photograph No 2 in 7/2 of process, he said that the architect measured what he said was approximately another brick to the right from the harling but Mr Crombie said no to that. In photograph No 3 there can be seen an arrow pointing to a line. The is the dividing wall between the houses. The architect said that that was the boundary. Mr Crombie refused to build to there because he did not want to cause any problems. The pursuer was an elderly gentleman and they had a good relationship. The extension was built entirely within his property. Photograph 5 of 7/2 showed the inner wall of the new kitchen in black. The grey breeze blocks were the outer wall and there was yellow insulation in between. The architect's mark could still be seen in that photograph. Photograph 7 of 7/2 showed the completed extension. The wall was inside the original harling where the fence used to be. Photograph 6 showed honey coloured fencing then Mr Smith's garage, then further honey coloured fencing turning at an angle and meeting what looked like barn doors. The fencing was erected in 2007 after completion of the extension. If one looked beyond it, one would see what was in photograph 2 of 6/7. The fence started from the corner of the new extension. The pursuer did nothing when he replaced the fence. He had never spoken to him since he had a meeting with him and his surveyors. Immediately after he replaced the fence the pursuer did and said nothing. The old fence was in a poor condition.

[20] In cross examination he repeated that he had put the fence where the original one was. The original one came up short of the garage by about 9 inches and then swerved round it. It was about 10 inches to a foot from the back of it and then straightened off. Someone could walk round it. He was asked to look at the Google Earth photograph No 6/8 of process and said that the black mark which might be the fence seemed a bit thicker at the bottom than at the top. The three witnesses who said the original fence ran straight from 1986 until 2007 were not qualified to say that. They were not men of skill. Neither was he but he lived there. The fence was leaning over and was rotting away. It was not as shown in the Google Earth photograph. In photograph 6 of 6/7 the fence ran to the extreme right hand edge of the fence as it was seen in the photograph. It was suggested that it was illogical if the brick and paint changed colour if the fence was not running to there but he disagreed. He was asked to explain why given that the Google Earth photograph showed a straight line the fence should have been moved and pinned in the garage. His answer was that the pursuer could still maintain his property. The old fence was there in 1999. It was the same fence as in the Google photograph. The pursuer had never said a word to him since 2007 apart from the time he got a surveyor and they had a meeting to see if they could compromise. The pursuer called the police about the new building on the instructions of Mr Shepherd, who had picked him up from Blackpool. Only part of the fence was away when Mr Smith came back. He had had to extend his house to accommodate his two children and his father, who had Alzheimer's. He was helped with local authority funding. No one objected when the Local Authority sent out letters about planning permission. When he put the new fence up he brought it back into his property so the pursuer's garden was in fact bigger than it used to be. He was asked to look at plan 3 of 6/9. That showed his fence in the yellow area going towards the garage. It was put to him that the boundary as he had made it lay to the right of where the pursuer said it should be. His position was it lay to the left of the boundary. He denied reducing the size of the pursuer's garden. The old fence ran from the broken harling in photograph 2 of 7/2 to Mr Smith's garage and swerved round it. Photograph 2 of 6/7 showed where the new fence started. It was 4 inches to the west of where the old fence was. He had increased the pursuer's garden but not by much. He agreed that plan 3 in 6/9 showed the line of the new fence. He was asked how he had increased the size of the garden if the fence had moved to the right and his answer was that the plan had been drawn up by men of skill and he did not know where they were saying the lines should be. He was asked how Mr Smith's garden could be increased if he could no longer walk round his garage and he said that he thought there was an agreement with Mrs Walker. He agreed that the fence had taken away what the pursuer thought was his property at the garage. He was referred to 6/10 of process, the letter of 25^th June 1986 from Gray Muirhead & Co. That indicated that the boundary was in a straight line. However he said that the boundary was not straight.

[21] In re-examination he said that he and the pursuer lived on either side of the fence and would be in the best position to comment how straight it was. He walked past it every day. As far as the letter, 6/10 was concerned, he did not know if the fence had been built when that was written. It was not straight when he moved in. On the ground beside the old fence in his back garden there was just grass and mud.

[22] The next witness was Derek John Patience, an architect. He had been instructed to go to the properties and do a measured survey as accurately as possible to prepare a drawing showing the relationship of the buildings and their garden ground as well as the two small buildings in that garden ground. He prepared drawing No 4 in 7/7 of process. He visited on two occasions in late June and 6/9 of process had been available to him. He had not seen the title deeds but he had seen Ordnance Survey Drawings and had ordered his own set. He did a detailed survey of the two properties and also walked around the streets and lanes to see if he could obtain any information about the fences and boundaries in similar properties. As he walked to the east in the lane he found similar pairs of houses with boundaries of different types, fences and paths and walls and was able to see the configuration of boundaries. He obtained the Ordnance Survey Plan after visiting the site. He got the plan in two sizes. The larger one was to enable him to check the general nature of the geometry of the streets and gardens. It was largely rectilinear. He also looked at Google Earth. The houses were set out in a strict rectilinear pattern. The houses addressed to the street square on and the largest number of boundaries were square to the houses with the notable exception of that of the rear of 75 and 77. The houses were all built by mine owners with a view to getting as many as possible built. It was a grid iron pattern like New York or the New Town. There were very few angles. To his eye there was a clear intent that the houses and the other built elements would be on a right angled geometry. He estimated the houses to be 100 to 120 years old perhaps. In such a grid like structure he would expect the boundary between buildings to be the centre of the party wall. In the garden he would expect the boundary to start where the centre line of the party wall met the outside face of the building and then to extend at right angles to the end of the garden. There was an exception where houses turned a corner. No 75 and 77 did not sit on a corner. When he did a measured survey he would draw a plan from first principles. He did not take a copy from another one. He would draw what he could see and then do a careful measured survey taking dimensions between two points to satisfy himself of the precise geometric arrangement. Everything he measured he drew and triangulated in order to obtain the correct shapes and angles. The centre of the party wall on drawing No 4 in 7/7 of process was the intersection of the yellow and blue colouring. Putting a ruler down the centre of the party wall and running it through the plan of the garden ground would produce a line which sliced through the end of the pursuer's garage. Mr Crombie's fence did not encroach on the pursuer's property. It was the other way round. He had been given copies of 6/9 of process, plans prepared by D M Hall, Chartered Surveyors, for the pursuer. He followed the dimensions and made a copy and related them to his. The position of the fencing in 6/9 was wrong. The correct positioning was as shown in his drawing No 4. The position of the garage was also wrong. In D M Hall's drawings it was closer into the pursuer's property than it actually was. There was support for his assertion about his depiction of the fence being correct to be found in photograph 6 of 7/2. In his drawing the fence went back at 90 degrees to meet the gable of the garage. In D M Hall's drawing, the fence was shown as running from the extension straight to the corner of the garage. The line at the garage end was, he said, more than two feet out. When he looked at photograph 4 of 6/7 of process he said that it was in fact about a foot out. The fence was further on Mr Crombie's side than was shown in D M Hall's drawing because there was a step in it.

[23] At this point Mr Bevan interjected to the effect that the evidence given by the witness about the line of the fence was considered to be non contentious and he conceded that the line of the fence built by Mr Crombie from the extension was as shown on the witness' drawing 4. Encroachment was still claimed upto the line of the fence but conclusions 4 and 5 would have to be amended slightly to take account of the correct line of it. That would mean that the encroachment claimed would be slightly less.

[24] Mr Bevan then cross-examined the witness. Mr Patience agreed that while in the vast majority of cases there was a grid pattern, it was not a universal rule. He found three where the boundaries were not rectilinear. He agreed with the measurements shown on Mr Jeffrey's plan 2 in 6/9 showing the measurements of the internal walls. They were pretty close to his own measurements. He agreed with the line of the fence as being 14.6 metres. He was asked whether he considered where the old boundary might have been and he said that he had. Looking at photograph 1 in 6/7 he said that he understood the old fence started effectively at the junction of the brickwork and the rendering. He was not told where the other end of the fence was. He surmised, though, from examining the paintwork and the brickwork on site, that that was where it might have run to, namely the change from the painted brick to the non painted brick. He looked at the Google Earth programme which had a photograph of the previous fence and it was very close to that. He thought that the line of the old fence as shown on plan 2 in 6/9 looked correct. That showed it ending where the white railings ended above the change in the brickwork. If one took the boundary which had been measured at 14.6 metres as being correct, as a matter of fact, then the pursuer's garage would not project onto Mr Crombie's ground. It was, however, substantially across the party wall extension.

[25] In re-examination he reiterated that the vast majority of properties had perpendicular boundaries. In his opinion the boundary between No 75 and 77 went straight out from the middle of the party line. On the Ordnance Survey Map it was straight but it was in the wrong place.

The last witness for the defender was Lindsay S Duguid, a Chartered Surveyor. He prepared 7/1 of process, a report dated 30 March 2011. He adopted that in his evidence with the proviso that the position of the north point on the plan had been wrongly drafted. He read the description of the land and building at No 75 Sixth Street contained within the Feu Disposition and noted that there were no measurements of boundaries in the Disposition. It referred to a plan and that was an extract from the Ordnance Survey of the area. Before going to the site he took sizes of the plan using a magnifying glass and the plan at the last page of his report was what he magnified. It showed the neighbouring back gardens. He concluded that the boundaries were perpendicular to the rear walls and in line with the party walls. He looked at Nos. 73, 75 and 77 and also walls to the west and the east to determine the patterns of adjoining properties. His view was that Ordnance Survey Maps on a scale of 1: 1250 were relatively inaccurate. He visited the defender's property before preparing his report and looked at it both internally and externally. The main focus was the position of the extension via the boundary. Paragraph 2 on page 3 of his report reads inter alia as follows:

"There is an internal door opening between the rear wall of the original building and the extension to rear close to the party wall with number 75 Sixth Street. On the south west most side of the rear wall the distance between the opening and the party wall measures 1.43 metres to the internal surface and therefore approximately 1.54 metres to the centre of the party wall".

He was of the view that the party wall was likely to have been 9 inches or approximately 22.5 centimetres wide. The paragraph went on:

"From the extension side of the opening to the gable wall the length of that wall measures 0.9 metres plus 0.3 metres being the depth of the gable wall of the extension giving an external size of 1.2 metres. This is approximately 0.34 metres inside the line of the party wall in which case we conclude that the extension has been built within the north west most boundary of the site in relation to what exists on site".

What he meant was that from the door opening into the extension he measured from the jamb closer to the wall to the internal surface of the wall within the extension and that the measurement came to 0.9 metres plus 0.3 metres for the depth of the gable, giving a total of 1.2 metres. That was 0.34 metres inside the party wall. That meant the extension was built inside Mr Crombie's own boundary. Photograph 5 of 7/2 showed the internal wall, the insulation and the outer wall. 1.2 metres was the distance from the internal nearer door jamb to the outside of the outside wall. The report went on:

"At the time of our inspection we did not have access to number 77. However, having regard to the position of the garage built on the garden ground to the rear of 77, it is apparent from standing on the flat roof over the extension of No 75 and from ground level to the rear of the path on the north east most side of the site that the boundary fence and rear section of the garage lie in the garden ground which passes with 75. The only measurement on site which could be taken is the length of the north east wall being part of 77 which, from the north east most wall to the fence post which is presently in place, measures 6.5 metres. This ties in with the Ordnance Survey Extract but, as previously indicated, the boundary line has been wrongly drawn. The fence post at the rear of the site between 75 and 77 should lie approximately 1 metre to the north east of its present position to be in line with the extension of the party wall reinforcing the opinion that part of the garage and fence lie within the boundary of 75".

I have just quoted from an amended report which was substituted for the original production without objection. He was asked which fence post he was referring to and said that when he inspected the site the fence which was in place was that in photograph No 6 of 7/2 of process. The post in question was that which started at ground level on the left of the photograph, as I understood his evidence. The length of wood which came between the brickwork in photograph 6 of 6/7 was what can be seen above the play tent in photograph 6 of 7/2. He measured the width of the pursuer's garden as 6.5 metres. He did that by extending the line of the wall between No 77 and 79 and measuring from there to the fence post in place. That measured 6.5 metres. The Ordnance Survey Map had been wrongly drawn. Having measured No 75 on site and compared it with the sizes scaled off in the Ordnance Survey Extract they did not match. The Ordnance Survey Plan was prepared after the houses were built. In order to tie the fence post in with the party wall extension it should be where the red brick and the dark brick met. When he surveyed the property it was virtually impossible for him to determine as a surveyor where on the back wall the southeast most end of the fence should finish but it should be a metre from its present position. He needed more accurate plans and that was why Mr Patience was brought in to prepare accurate plans. He was not skilled in saying where it should actually start. If Mr Patience had carried out a measured survey and differed from Mr Duguid then he would be correct.

[26] In cross examination he was asked where he got the Ordnance Survey Plan which he magnified. He thought that it came from a Feu Disposition but it was just for illustration and was not to scale. It was the same as the plan in the Smith Feu Disposition. 6/4 was a P16 form provided by Register House. It appeared from that that the Registrar confirmed that the boundaries of the subjects coincided with the Ordnance Survey Map. He had marked on the plan the distance between the west and east boundaries of the rear garden per the Ordnance Survey Plan as being 6.5 metres. He projected the northeast boundary back and measured it to the fence post and found that it was 6.5 metres. In his opinion it should be less than that. On a true projection the post should be moved perhaps a metre to the right to where the brickwork changed colour. It might not be exactly a metre. He looked from the roof of 75 down the line of the party wall to the back wall of the site and his view was partly obscured by the garage. He also looked from the lane and it was virtually impossible to determine the exact line the boundaries should have taken. He agreed that it was approximately a metre from where the fence was on the photograph to where the bricks changed colour.

[27] In re-examination he said that the figure of approximately a metre was an estimate. He would defer to Mr Patience's measurements.

Submissions for pursuer
[28] Mr Bevan said that one of the main aspects of the pursuer's case was that the old fence ran on the line of a very old hedge and secondly that that hedge was taken down by agreement with Mrs Walker in 1986. The fence and hedge by-passed his garage, the garage was on his ground and he had full access to it. Mr Smith's evidence was that he built the garage in 1971, having moved in as a tenant in 1970. Mr Shepherd said that the fence followed the line of the previous hedge which she said, as had Mr Smith, had been there for about 60 years. In any event both Mr Smith and Mr Shepherd said that the fence and the hedge by-passed the garage. Mr Shepherd moved into No 73 in 1984. He was aware of the hedge being removed in 1986 and that coincided with what Mr Smith said. That was also evidenced by 6/10 of process, the letter from Gray Muirhead & Co. Evidence as to the line of the fence was given by Mr Shepherd and Mr Watson who both said that it terminated where the brickwork changed colour and the railings ended, per photograph 6 of 6/7 of process. There was general agreement that the north end was indicated by the dark line of broken harling next to the extension as shown in photograph 1 of 6/7 for example. Mr Shepherd and Mr Watson said that the old fence ran in a straight line slightly obliquely to the back wall joining the two points. This was supported by the Google Earth photograph. Both Mr Jeffrey and Mr Patience confirmed that it supported the line of the fence as drawn on 6/9 of process. Mr Shepherd also said it indicated the line. Mr Crombie said that the fence kinked around the garage and met the wall at the right hand edge post looking from the outside and the corner of the honey fence looking from the inside of the garden. Given the terms of the Gray Muirhead letter referring to the boundary being a straight line, the fact that Mr Patience agreed that the changing brickwork colour was a likely end point and the Google picture in the evidence of Mr Shepherd and Mr Watson was to be preferred to that of Mr Crombie regarding the line of the fence. As far as the removal of the fence was concerned, the evidence of Mr Smith, Mr Shepherd and Mr Watson was that it was removed without warning when Mr Smith had gone off on holiday. Messrs Shepherd and Watson and possibly Mr Smith referred to calling the police when he found out. A lawyer was also consulted but nothing was done by Mr Crombie. That was hardly the reaction to be expected if an agreement had been reached for removal of the fence. Both Shepherd and Watson said that they had known the pursuer for more than 25 years and knew him very well. He was around 90 at the time and was infirm. Mr Shepherd regularly visited him each evening to see how he was and such matters would have been discussed with him by Mr Smith had they arisen. Mr Watson also spoke to Mr Smith regularly and had no wind that it was about to happen. He would have known about it if it had been discussed. Mr Crombie sought to suggest that the removal of the fence had been agreed with the pursuer but given his evidence as to the line of the fence his evidence about that should be discounted. There was no averment on record that any agreement had been reached. It was fairly fundamental because if the matter had been agreed then this action might never have been raised.

[29] Mr Bevan then turned to the error in the plan. At condescendence 5 from page 16 to 17D, the pursuer makes the following averments:

"The title plans bear to show that the line of the boundary between the respective back gardens is a projection in a straight line of the southmost length of the internal wall. By scaling the title plans the apparent width of the pursuer's rear garden is 6.5 metres or thereby. By projecting along the actual line of the southmost length of the internal wall, the width of the pursuer's rear garden would be only 5.88 metres or thereby. To the south of the defenders' extension, the new fence extends even further into the pursuer's subjects to a maximum of 1.2 metres or thereby. This is apparent from said Plan 1 which shows the extent of the defenders' unlawful encroachment in orange and which is further referred to for its terms. The title plans also bear to show the line of the internal wall as running south southeast from the point where the centre line of the internal wall meets the front or north northeast facing walls of said dwellinghouses (which front walls are bounded to the north northwest by Sixth Street) 8 metres or thereby, then as running east northeast 2.5 metres or thereby and then as running south southeast on a line lying 0.6 metres or thereby and parallel to the west southwest of the internal wall for 4.5 metres or thereby. The internal wall does not, however, follow the line shown in the title plans. It runs south southeast from the point where the internal wall meets the said front or north northeast walls of said dwellinghouses for 3.6 metres or thereby, then runs west southwest for 0.8 metres or thereby, then runs again south southeast for 4.4 metres or thereby, then runs east northeast for 4 metres or thereby, then runs again south southeast for 4.5 metres or thereby, then runs along the outer face of the back or south southeast facing wall of the dwellinghouse number 75 Sixth Street 0.25 metres or thereby. The title plans are accordingly incorrect".

Mr Bevan understood that the internal wall issues were not disputed by the defenders. In response at Answer 5 on page 18E the defenders' aver as follows:-

"Admitted the title plans bear to show that the line of the boundary between the two properties' rear gardens is a straight line following the projection of the original stone wall separating the built accommodation of the two properties. Admitted by scaling the ordinance survey title plans the apparent width of the pursuer's garden is 6.5 metres or thereby under explanation that it is believed and averred that the title plans are wrongly measured and/or drawn".

It was agreed then that there was an error in the title plans. Mr Bevan referred also to Answer 5 at page 19B as follows:

"Admitted the title plans are incorrect in so far as the plans are incorrectly measured and/or drawn, under explanation that the plans show the boundary was intended to be a straight projection separating the two properties".

[30] Mr Bevan submitted that on the plans with the Feu Dispositions the plans tended to show that the boundary was a straight projection from the internal party wall. Mr Jeffrey said that the plans showed a garden width of 6.5 metres or so and Mr Duguid supported that by reference to an Ordnance Survey Map from another Disposition. Mr Patience was more reticent to say what the width would be by looking at the Ordnance Survey Plans attached to the Dispositions. Mr Duguid also said that having measured on the ground and having been unable to get access to the pursuer's property he scaled it from the northeast boundary and to the point at the back of the garage. His 6.5 metre measurement took him to the fence post in 6/7 photograph 6 at the left hand side and adjacent to the gate. He then said that the fence post should be a metre to the right of the post and that would bring us to the corner in Mr Crombie's garden but he had to agree that using the width of the bricks about a metre to the right brought on not far from the end of the metal railing where the bricks changed colour. The evidence supported the contention that the plans attached to the Feu Disposition were wrong in depicting the boundary. They were not just wrongly measured but one could not reconcile the 6.5 metres as scaled from the plan with the plans depiction of the rear garden boundary wall projecting in a straight line from the party wall inside. The subjects were described in equivalent terms in both properties in the Dispositions. No measurements were given. The plan was not said to be taxative. Even if it was said to be taxative there would be problems with it. Given the ambiguity in the plan it could not be relied upon. That being the case the pursuer submitted that the better way of looking at the matter was to ascertain what the position was on the ground when the Feu Dispositions were granted. 6/1 was recorded on 11th December 1985 and the Disposition in favour of the defenders was recorded on 28^th September 1984. In light of the evidence that the hedge ran in a straight line at an oblique angle and was replaced by the fence on the line shown in plan 2 by Mr Jeffrey, then that should be the basis on which the boundary was determined. There was some discussion about the question of triangulation but Mr Jeffrey said he measured the line shown, the 14.6 metre line as representing the old fence line and he did this from scaling the plan. It was pointed out that the defenders had agreed the lines of the internal walls he had measured and it was easy to ascertain the length of the line joining the points where the fence met the back wall and the houses. The evidence focusing on the accuracy of the techniques used was of little importance and indeed Mr Patience agreed that it was about right.

[31] The pursuer's position was that the plan should be held pro non scripto in so far as it dealt with the garden boundary. In that case one might look to the description on the ground. There was nothing in the words of the description which assisted since it had no measurements. The boundary should be the line of the old fence. There was no dispute that the pursuer had possessed the area within the old fence since 1970. He only had to do it for 10 years. [h1] It was well known that one could not prescribe outside one's title. The title had to be habile to include the land in question in terms of section 1 of the Prescription and Limitation (Scotland) Act 1973. If so the title would then be immune to challenge. Prescription was relied on where there was dubiety. The title to No 77 and reciprocally that of 75 had the effect of indicating the boundary between the two subjects. The defenders experts made play of the fact that most of the properties were grid iron patterns. There were at least three properties on the plan where this did not hold good. Mr Jeffrey was of the view, as were the defenders'

experts, that one would normally expect the dividing garden wall to run from where the internal party wall was. This was not a problem for the pursuer in the first two conclusions since the fence post at the harling was close. This would be a live point if what were concluded for in the third place was granted on the basis that the Feu Disposition plan had to be given effect and the emphasis should be on the fact that the pursuer had a garden 6.5 metres wide. This contention would be just as valid as saying that the line should run from the party wall. On the one hand the defenders said that the line should run from the party wall but on the other hand the pursuer's position was that his garden was 6.5 metres wide. If it were held that the oblique line was not the true boundary, then we were still in a dilemma as to what the Feu Disposition plan meant. Either could be argued but the plan should be disregarded and one should look at what was on the ground. The written description of the property was habile to include the ground bounded by the hedge and the old fence given that the plan was useless and could not be right. The plan was wrong on any view.

[32] I was invited to look at plan 3 attached to 6/9 of process. The area of encroachment was shown hatched in black and the pursuer would say that the yellow part was the encroachment if the 6.5 metre measurement was correct. If one looked at the plan the area of encroachment was a bit less if the line ran from the fence post. It was clear from the evidence that the straight line of the old fence bypassed the garage to allow the pursuer to have access, assuming it was a straight line. He had now lost that. The pursuer said that he erected the garage in 1971 and he would not have built it over to the other side. He had been there for 40 years and more. If the old fence was in a straight line the garage could not have been built encroaching on the neighbouring property without knocking a bit of the fence down. The Commissioner's note on the pursuer's credibility was not very helpful to him but he was an old man. He did, though, give some useful information.

[33] Mr Bevan then turned to a number of alternative scenarios with which I might be presented. The first conclusion in summary was for declarator that the plans attached to the Feu Dispositions were incorrect in their depiction of the mutual boundary.

[34] The second conclusion was for declarator, effectively, that the boundary followed the line of the old fence. The third conclusion, failing the first and second was for declarator that the boundary between the back gardens was as shown on plan 3 annexed to 6/9 of process.

[35] If I granted declarator in terms of the first and second conclusions, the fourth conclusion was for declarator that the defenders had unlawfully encroached on the pursuer's subjects by erecting the extension and the fence, all as the extent of the encroachment was shown on plan 1 annexed to 6/9 of process. As it happens the conclusions referred to plans "annexed hereto" and Mr Bevan moved to substitute the words "annexed hereto" and replace them with the words "produced herewith".

[36] The fifth conclusion was for declarator, in the event that declarator was granted in terms of the third conclusion, that the defenders had unlawfully encroached on the pursuer's subjects by erection of the extension 70 centimetres or thereby and by erection of the fence following an irregular line all as the extent of the encroachment was shown coloured yellow on plan 3. That was effectively on the basis that the garden was found to be 6.5 metres wide. The sixth conclusion was for decree ordaining the defenders to demolish and remove the extension in so far as it was erected on the pursuer's subjects and to make good to the pursuer's satisfaction any damage to his property resulting from the demolition and removal. The seventh conclusion was for decree ordaining the defenders to demolish and remove the fence insofar as it might be found to have been erected on the pursuer's subjects and to make good to the pursuer's satisfaction any damage to his property resulting from such demolition and removal. As far as the eighth conclusion was concerned it was, in the event of decree being granted in terms of the first, second, fourth, sixth and seventh conclusions, for decree ordaining the defenders to erect to the pursuer's satisfaction a fence of a kind to be approved by the pursuer along the line of the previous timber fence and to make good to the pursuer's satisfaction any damage to the pursuer's property resulting from such erection.

[37] The ninth conclusion was, in the event of decree being granted in terms of the third, fifth, sixth and seventh conclusions for decree ordaining the defenders to erect to the pursuer's satisfaction a fence of a kind to be approved by the pursuer along the south west boundary of the pursuer's subjects insofar as it lay along the area of encroachment coloured yellow on plan 3 and to make good to the pursuer's satisfaction any damage to his property resulting from such erection. Failing decree as sixth and eighth concluded for, the tenth conclusion was for decree ordaining the defenders to erect to the pursuer's satisfaction a fence of a type to be approved by him along the line of the previous timber fence marked on plan 1 insofar as the line ran from the rear of the defenders extension and to make good to the pursuer's satisfaction any damage to his property resulting from such erection. In other words, if the extension was not to be demolished, there should nonetheless be a new fence from the back of it along the line of the old fence. Separatim, conclusion 11, failing decree as sixth and ninth concluded for, was for decree ordaining the defenders to erect to the pursuer's satisfaction a fence of a kind to be approved by the pursuer along the southwest boundary of his subjects insofar as it lay along the area of encroachment coloured yellow on plan 3 insofar as the line ran from the rear of the defenders' extension and to make good to the pursuer's satisfaction any damage to his property resulting from such erection. In other words failing demolition of the extension and failing an order to rebuild a fence along the line of encroachment coloured yellow on plan 3, this conclusion sought the erection of a new fence to run from the rear of the extension along the 6.5 metre line. Conclusion 12 for damages of £2,000 was not insisted in.

[38] As far as the pleas in law were concerned, the first was to the relevancy of the defenders' averments and should be regarded as superseded. The second was in respect of the first conclusion, the third in respect of the second conclusion. The fourth plea in law related to the question of encroachment and covered the fourth, sixth, seventh and eighth conclusions. The fifth plea in law related to decree in terms of the fourth, sixth, seventh and tenth conclusions in the event that decree as eighth concluded for was not granted. The sixth plea in law related to the third conclusion in the event of decree not being granted in terms of the first and second conclusions. The seventh plea in law related to the fifth, sixth and ninth conclusions in the event that decree was granted in terms of the third conclusion. The eighth plea in law related to the fifth, sixth, seventh and eleventh conclusions, failing decree as ninth concluded for. The ninth plea in law related to the twelfth conclusion and was superseded.

[39] I invited Mr Bevan to address me as to the considerations I should have in mind if considering the question of demolition. Mr Bevan conceded that no action had been taken to interdict encroachment. An argument might well be made that given the value of the extension as opposed to the loss of amenity, demolition might not be granted. The pursuer was, though, entitled on the face of it to seek recovery of the possession of his ground. The circumstances of the encroachment were unpleasant and Mr Bevan insisted on demolition or partial demolition certainly in regard to the fence.

Submissions for the defenders
[40] Mr Dunlop submitted that as far as the boundary depicted in red on the plans in 6/9 was concerned, the Ordnance Survey Boundary (if I might call it that), none of the civilian witnesses said that that should be the boundary. The three experts all spoke to inaccuracies in respect of dimensions. Nonetheless whilst a jigsaw could have a few pieces missing one could still see the picture. Mr Jeffrey said that the Ordnance Survey Plan showed anomalies because of the bedroom and the livingroom being in each other's title. All three said that the plans were drawn up 50 years ago and the houses built 100 years ago. The physical position of the land and houses were all well settled when the plans were drawn up and there was no compelling reason for them not to be accurate. Some houses had gardens with angular boundaries. That was compelling evidence that had the present boundary been meant to be at an angle it would have been drawn as such. Mr Jeffrey accepted that the Ordnance Survey Plan showed what appeared to be a right angled boundary as did the other two experts. There was no evidence to support the boundary as shown in the red outline taken from the Ordnance Survey Plan. The defenders drawing 4 in 7/7 of process was accepted as accurate by Mr Bevan, at least in relation to the line of the fence. Mr Duguid readily accepted that he would defer to measurements taken by Mr Patience. Mr Duguid specifically asked for Mr Patience to be instructed, as measuring was outwith his expertise. In terms of the perpendicular boundary all three experts said that the surrounding area had houses mostly built with perpendicular boundaries to the rear party wall. The Ordnance Survey Map clearly showed that the boundary was at a right angle. Even Mr Shepherd said it looked like that. The Google image was very rough, according to Mr Patience. No expert could speak to the position of the fence before 2007. The best two people who could speak to it was those who shared it, Mr Smith and Mr Crombie. In considering Mr Smith's evidence I should have regard to the Commissioner's report. His evidence was very confusing and unreliable. In terms of the old fence, part of it appeared to have been at least 10 inches from the rear of the garage. If so, part of it was essentially obscured from the pursuer's view. The whole fence, wherever it lay, was in full sight of Mr Crombie. The witnesses had only known the area since the 1970's. They could not comment on what boundary existed when the houses were built. In terms of prescriptive possession the extent of the land enclosed by the old fence was not clear. Some witnesses thought it was straight, others not. The court had difficulty in granting a conclusion when it was not known where the fence was. It had to be a habile title before prescription could run. It had not been proved that the pursuer had a habile title to the land west of the perpendicular party wall. The title in the Feu Disposition was not habile to instruct description. The titles were vague. They related to coal miners' cottages which would be sold on once the miners had left and there was no need for detailed titles. Ultimately the title deeds simply said that No 75 was bounded by No 77. There was a plan showing a perpendicular boundary and three experts all agreed that the plan was perpendicular, albeit the dimensions were wrong. One would expect, given the terms of the titles, that the boundary would be perpendicular. A further check on the title was the state of the neighbouring houses.

[41] It would not be reasonable to demolish the extension. Any encroachment was of a minor nature. Mr Dunlop referred to the case of Anderson v Brattisanni's 1978 SLT (Notes) 42. In that case the pursuer was the heritable proprietor of a top flat in a tenement building and the defenders were the tenants of a fish and chip restaurant on the ground and basement floor in an adjoining tenement. The tenement containing the restaurant was built upon the west gable wall of the tenement in which the pursuer's flat was situated. As the former was of lesser depth than the latter from front to rear a small part of the gable extended from the rear of the westmost building to the rear of the eastmost tenement and was exposed. It contained no windows. The cable wall at the level of the pursuer's flat, including that part which was exposed, formed the side of his flat and was his exclusive property. When the restaurant was constructed it was essential to provide for the extraction of fumes and smells and fan equipment was installed in the kitchen for that purpose. From there an 11 inch extractor duct or flue was laid through the rear wall of the basement and up the exposed part of the gable to beyond roof height. The flue was secured at intervals by spikes, one or two of which were driven into the part of the gable belonging to the pursuer in order to support the flue. The pursuer was unaware of the construction of the flue until his attention was drawn to it when he became aware of disturbing noises which could be traced to it. The flue was put in place around 1966 and noises from it continued at intervals over a number of years, being particularly intrusive on the day of an international rugby match on 1 March 1975. The pursuer from time to time complained to the defenders about the noise and about the smells and the cause of the troubles was found to be the building up of rubbish in the drip tray of the extractor machinery. Action was taken to deal with the problem and after March 1975 there were no further emanations of noises or smells. In April 1975 the pursuer brought an action against the defenders in the Sheriff Court craving inter alia an order for the removal of the flue or alternatively interdict prohibiting the defenders from causing noxious fumes or noise to be emitted from the flue. The Sheriff declined to order the removal but granted interdict. The pursuer appealed to the Court of Session but his appeal was refused. In the course of its opinion the court said the following:

"We now come to the real point of substance in the case in which the sheriff found against the pursuer. He declined to order the removal of the flue because, for the reasons which he gives, it would have been wholly unreasonable to do so.

In joining battle upon the sheriff's judgment upon this question, it soon became clear that there was no dispute between the parties as to the relevant law, and what follows in this paragraph of the opinion may be taken to have been accepted - and correctly accepted - on both sides of the Bar. The general rule is that a proprietor is entitled to have any structure erected on his property removed.

There is, however, an equitable power in the court, in exceptional circumstances, to refuse enforcement of the proprietor's right at least in a question of encroachment by a neighbouring proprietor. In this case we are now told that the defenders are merely tenants, but we do not require to decide whether this equitable power is, in law, available in a question with an encroaching tenant because we were expressly invited by counsel for the pursuer to assume for the purpose of this chapter of the appeal that the power may be exercised by the court even in the case where the encroacher is a tenant and not a proprietor. The existence of this power has been recognised in cases such as Sanderson v Geddes (1874) 1 R 1198; Begg v Jack (1875) 3 R 35; Grahame v Mags. Of Kirkcaldy (1882) 9 R (HL) 91; and Wilson v Pottinger (1908) 15 SLT 941, 1908 SC 580. From these cases it is clear that the power may be exercised when the exact restoration of things to their former condition is either impossible or would be attended with unreasonable loss and expense quite disproportionate to the advantage which it would give to the successful party. The power will, however, be exercised sparingly and it may be deduced that because it is exercised the court would have to be satisfied that the encroachment was made in good faith in the belief that it was unobjectionable, that it is inconsiderable and does not materially impair the proprietor in the enjoyment of his property, and that its removal would cause to the encroacher a loss wholly disproportionate to the advantage which it would confer upon the proprietor.

[42] In the instant case, said Mr Dunlop, there was a narrow gap separating the outbuilding in the pursuer's property and the extension. Within that narrow gap the only room which overlooked it was a bathroom with a narrow corridor. The extension was built in good faith. The architect went to great lengths to identify the party wall and Mr Crombie moved it one foot further into his own land. In fact it started to the left of the old fence. The encroachment, if any, was so minimal as not to warrant demolition. Demolition would be disproportionate. It was now 2011 and the project took from the end of September 2007 to some time in November of that year. There had been ample chance to do something then and Mr & Mrs Crombie should not be the victims of an inadequate service from the pursuer's advisers if there were any.

[43] Mr Dunlop then referred to the case of Auld v Hay (1880) 7 R 663 as authority for the proposition that a habile title was required for prescription to run. At page 668 the Lord Justice Clerk said the following:

"The first, and as it appears to me the only question raised in the case is, whether there be here a habile title on which prescriptive possession can proceed; for if there be, the possession itself, is continuity, and its ascription to the title, appear to be beyond dispute. Whether the title founded on be one on which possession for forty years can establish a right of property depends solely on the terms of the written charter or disposition itself and neither on extrinsic evidence nor on possession. A habile title does not mean a charter followed by sasine, which bears to convey the property in dispute, but one which is conceived in terms capable of being so construed. The terms of the grant may be ambiguous, or indefinite or general, so that it may remain doubtful whether the particular subject is or is not conveyed, or, if conveyed, what is the extent of it. But if the instrument be conceived in terms consistent with and susceptible of a construction which would embrace such a conveyance, that is enough, and forty years' possession following on it will constitute the right to the extent possessed".

Mr Dunlop submitted that I should consider the deeds and the plan. The plan showed a perpendicular boundary, not one at an angle, and the experts said that they would expect a perpendicular boundary. It was mirrored in the neighbouring properties. The fact that there were some boundaries at an angle showed that if that was intended it would be done. Reference was made to the case of McCowan v Shields and Others (1867) 4 S.L.R. 179 for the proposition that possession of land without a title gave no right but I need not go into details of that case. The case of Reid and Others v McColl (1879) 7 R 84 was also referred to but it added nothing to the discussion.

[44] Mr Dunlop conceded that there had been possession of some land in the instant case but there was no title.

Reply for the pursuer
[45] I was invited to look at the report by Mr Jeffrey contained in 6/7 of process in connection with the suggestion that there was insufficient evidence that the red line representing the Ordnance Survey Map was the boundary. On page 1 of that report Mr Jeffrey said inter alia the following:

"1. The outer edge of the red line is the boundary as shown on the plan that is attached to the original disposition. We would point out that the dimension across the garden was plotted from the Ordnance Survey Map as 6.5m".

Thus there was evidence that that was the position. That part of Mr Dunlop's submission that related to when the houses were built and the fact that miners lived there was irrelevant. Mr Dunlop had said that some witnesses thought the line of the fence was straight and others did not. Mr Shepherd and Mr Watson spoke to it and only Mr Crombie suggested that the line was not straight. It was suggested that Mr Shepherd and Mr Watson would not know what the line was since they did not see it daily but it was there for ages. The weight of the evidence supported the view that the line was straight. It was said that any encroachment was minor. That might appear so to some but the garden had been substantially eroded. A small encroachment in a small garden was worse than a small one in a large garden. To say that it had little or no impact on the pursuer was not correct as could be gauged by the pursuer's reaction. (That however was to the removal of the fence). Mr Bevan accepted that some boundaries were shown at angles and that could suggest that if the boundary between No 77 and 75 was meant to be angled it would have been shown to have been but that overlooked the fact that the plan was completely wrong in any event. It was clear from the evidence that the pursuer possessed the property up to the line of the old fence for at least the requisite period and that was not an issue. As far as Anderson v Brattisanni's was concerned, the power not to order demolition would be exercised sparingly. The court would have to be satisfied that the erection was made in good faith and was unobjectionable. There was no semblance of good faith in this case. The encroachment also had to be inconsiderable and its removal would have to cause the encroacher a loss which was wholly disproportionate to the advantage which would confer upon the proprietor. One could see the extent of the encroachment in plan 1 of 6/9 of process. It was not just a small corner of the garden.

[46] On Mr Bevan's motion I allowed the conclusions to be amended by deleting the reference to the plans being annexed hereto and by substitution of the words "produced herewith". He moved to delete the reference to the plans in the fourth and fifth conclusions and I allowed that. He also moved to amend conclusions eight, nine, ten and eleven by inserting the word "reasonable" between the words "pursuer's" and "satisfaction". I indicated that I would consider that but I have decided in fact to allow the amendment.

Discussion
[47] I obviously did not have the advantage of seeing and hearing the pursuer's evidence for myself but I have considered the report of that evidence and the Commissioner's note as to his credibility and reliability. It was clear that he was a very difficult witness who may not have understood precisely why he was being asked questions. The Commissioner did not suggest that the pursuer was intentionally trying to be difficult and was sure that he himself believed that the defenders had built on his land but the only things he was able to say with any reasonable degree of clarity were that there was some sort of historic discussion between himself and Mrs Walker, the defenders had taken down an existing fence without his permission whilst he was on holiday and when he was 90 years old and he had a general understanding that the defenders' subsequent extension and fence had been built on his property. I do not think that I need to go into the detail of the pursuer's evidence since the factual position is, I think, reasonably clear from the evidence which I heard. I am satisfied that there was a hedge running between the properties at the rear and that by agreement with Mrs Walker who lived at No 75, that hedge was taken down and replaced with a fence. There was a dispute as to the line of that fence but I am satisfied that the version of events given by Mr Shepherd and Mr Watson is to be preferred. The Google Earth photograph taken in 1999 shows a straight line running between the properties, albeit at an angle. There was no dispute that the fence joined the house where the harling was broken as shown in the photographs. As to where it joined the garden wall, the evidence of Mr Shepherd and Mr Watson ties in with the physical appearance of the brickwork and the railing. I hold that the fence ran between the broken harling and where the white railing stopped above the point where the brickwork changes colour as shown in photograph 6 in 6/7 of process.

[48] It was not disputed, I think, that the plans attached to the Feu Dispositions in favour of the pursuer and the defenders and based on the Ordnance Survey Map were defective. They were plainly defective in relation to the internal divisions between the properties. To that extent I have little difficulty with the first conclusion insofar as it relates to the internal boundary.

[49] That, however, does not take us very far. If the line of the original fence followed the boundary between the properties then, one can see from the plans that there has indeed been a degree of encroachment on the part of the defenders. Similarly if the line of the fence did not follow the boundary, but, as it were, encroached into the property now belonging to the defenders, the pursuer plainly occupied the area bounded by that fence and the garden wall for at least the prescriptive period, peaceably and without interruption. If he had a habile title, then once again it is plain that there has been encroachment.

[50] If the line of the fence did not follow the boundary and in fact ran into the defenders property and if the pursuer does not have a habile title for the purposes of prescription, the question of encroachment will have to be decided with reference to what I believe the boundary to be. Thus the ascertainment of the original boundary, if possible, is of crucial importance, unless prescription can operate.

[51] I turn first therefore to look at the question of the boundary. I do not think it necessary to consider the internal boundary except insofar as it shows that the Ordnance Survey Map is flawed. As I have indicated, parties were agreed that the Ordnance Survey Map contained flaws. Mr Bevan's position was that it should fall out of consideration altogether. Mr Dunlop suggested that it should be taken into account, as I understood him, at least in as much as it showed that the boundary was intended to be perpendicular.

[52] I have reached the conclusion that Mr Dunlop's submission on this is to be preferred. It is plain from looking at the map that the boundary line is drawn perpendicularly to the rear of the properties. I think it likely that a perpendicular boundary was intended. In the first place that conclusion would accord with the position in the majority of houses in the area. Secondly, it accords with what one can see with the naked eye and indeed when the plan is magnified. Thirdly, it accords with the view of the expert witnesses that a perpendicular boundary drawn from the central line of the party wall is what they would expect to find.

[53] I am satisfied that the true boundary between the properties is a line drawn perpendicularly from the centre line of the party wall. When that line is produced through the rear garden, it shows that far from the extension and the new fence encroaching on the pursuer's property, it is the pursuer's garage which encroaches to some extent on the property of the defenders.

[54] On reaching this conclusion, I have taken account of the plan insofar as it is intelligible. I do not think it necessary or appropriate that the entire plan should be discarded when sense can be made a part of it. It seems to me to make more sense to have regard to the fact that the line is perpendicular than to the scaled up measurement in view of the general consensus among the experts that a perpendicular line would be expected and in view of the fact that that is reflected in the vast number of other properties in the surrounding area. I agree with Mr Dunlop's submission that were the line intended to be at an angle it would have been drawn as such, as has been the case in three other properties in the area.

[55] I may say at this stage that I prefer the evidence of Mr Patience as to the measurements to that of Mr Duguid, who himself bowed to Mr Patience's superior knowledge.

[56] It follows from this that I find that the line of the old fence encroached on the property of No 75. There is no doubt that the pursuer possessed the property bounded by the old fence and his garden wall for at least the prescriptive period. The question remains therefore whether his title was a habile one for the purposes of prescription. In my opinion it is not. I am satisfied that the plan, so far as it is intelligible, must be considered along with the written description of the subjects. When one considers the plan one can see that the boundary is perpendicular and not at an angle. I am satisfied that it runs from the centre line of the dividing wall. In my opinion that is the clear position and there is no ambiguity in it such as would allow prescription to run.

[57] In the circumstances it follows that the pursuer has failed to prove his case and I refuse to grant decree in terms of his conclusions.

[58] I did indicate that to some extent conclusion one was justified in respect of the internal boundary but I see little point in granting that declarator in part. The operative part of it for present purposes relates to the rear garden boundary and in that connection I find in favour of the defenders.

[59] I may say that had I been minded to find in favour of the pursuer, I would not have ordered the demolition of the extension. It seems to me that that would be disproportionate in view of the very limited encroachment which would have been caused by the extension had I found in the pursuer's favour. I would however have ordered demolition of the fence where it ran from the extension and in as much as I found that it encroached on the pursuer's property.

Decision
[60] I shall repel the pursuer's pleas in law numbers two, three, four, five, six, seven, eight and nine, uphold the defenders pleas in law numbers two, three, four, five, six, seven, eight, nine and ten and assoil the defenders. I shall put the case out By Order in order that all questions of expenses may be discussed.

---