ANGUS BELL AND ANOTHER v. FLORA BROWN CAMPBELL OR FIDDES
| OUTER HOUSE, COURT OF SESSION |
| | OPINION OF LORD McEWAN in the cause ANGUS BELL AND ANOTHER Pursuers; against FLORA BROWN CAMPBELL or FIDDES Defender: ________________ |
Pursuers: McLean; Drummond Miller, W.S. (for Stirling & Gilmour, Solicitors, Helensburgh)
Defender: Johnston; Brodies, W.S.
23 January 2004
[1]The traveller who motors north on Islay on the A846 road from Port Ellen to Bowmore will see near to the airport the Glenegedale Lots. A right turn to the east on to an unclassified road will soon lead him over a small bridge at a croft. The bridge crosses a burn. There lives Mr Angus Bell and his wife Caroline. Mr Bell is principally a speaker of the Gaelic language. The croft has always been farmed and is so to this day. Further to the east, about ten minutes on foot, is a smaller croft where lives Mrs Fiddes. Mrs Fiddes says she is entitled to access to her croft on foot or in a vehicle over the bridge and past Mr Bell's house. Mr Bell disputes this and the protracted litigation before me has been waged like a battle to decide this and other issues.
[2]There have been a number of actions in various courts, and at this point it is only necessary to give a summary of them. In 1993 the sheriff at Campbeltown granted Mrs Fiddes (then the pursuer) a declarator of a servitude right of way, based on a map, with ancillary interdict. The action was undefended. Mr Bell sought to be reponed but failed. In 1994 Mrs Fiddes lodged a summary application for breach of interdict. Hearings took place before the sheriff and the sheriff principal in 1994 and 1995. Next the pursuer Mr Bell sought judicial review in the Court of Session. That too was not successful. There have even been criminal proceedings because of the dispute and Mrs Fiddes was convicted in December 1993. There are also actions in the Land Court as will be seen.
[3]Now this action has been raised in 1995. Thirty one witnesses testified. There was a lot of procedure before I first saw the case in June 2001. In 1997 a commission to take evidence was granted. Some eight witnesses were examined. I first heard evidence on 19 June 2001 and last heard evidence on 29 February 2002 (there were ten days in all). Submissions then began and did not conclude until 13 June 2003.
[4]There had also been a further commission to take evidence from one witness. Apart from the witnesses taken on commission, the pursuers led fifteen witnesses and the defender six. There is one affidavit. There is also a joint minute. The Notes of Evidence have been extended and I refer to many pages in this by number.
[5]Many matters were explored in the days of proof, the most important of which was the alleged right of way upon which the sheriff had ruled having heard ex parte statements only. That is no criticism of him. He had no other option in view of what happened at the time.
[6]One of the many problems of the case was that until relatively recently nobody independent of the parties themselves had gone to the crofts to look at what was there in relation to the deed plans.
[7]It is now appropriate to look in more detail at the Record to see what is in issue. The pursuers seek reduction of the sheriff court decree and extract of February 1993. What was granted by the sheriff in that decree was a declarator of a servitude right of pedestrian and vehicular access along the line shown on a coloured plan which was before the sheriff. That was all he was asked to grant. That plan has never been produced to me and its whereabouts are unknown. It was said that No. 13/5 of process probably shows the line which the sheriff must have used and I have made that assumption in writing this Opinion (perhaps unwisely).
[8]The pursuers (Cond. 5) say that they had and have a defence to this action and much of the proof before me was devoted not only to saying what was that defence but to proving it in detail. The defender equally led a proof intended to rebut this alleged defence. The defender, before me, contended in her proof that the servitude went over "the bridge" and by that I mean the bridge built by the pursuer in 1974; and then to the east of the pursuer's house. As appears elsewhere in this Opinion I am quite satisfied that that was the year when the bridge was built. It is seen in the large coloured photo (No. 17/5 of process) and in other smaller ones lodged (No. 27/7 of process). The whole weight of the evidence supports 1974 as the year and only the defender contended that there was a bridge like it before then. I have held that before 1974 there was only a crossing over the ford to the east with foot access over a plank as shown in the black and white photo No. 20/3 of process.
[9]Thus before the sheriff the defender (Mrs Fiddes) sought a route on the only map or plan she could rely on. It became clear from the proof before me (as will be seen) that her title does not show a route over the bridge. The defender's own witness Mr King destroyed any such argument. The defender plainly wants access over the bridge and equally clearly the plan cannot give it to her. Accordingly in the proof before me it was sought inter alia to persuade me that she did have a right over the bridge. That of course is an issue which was never before the sheriff. The effect is to complicate the remedy the pursuer seeks which is in a sense to seek a negative. He only wants his defence heard. That defence only incidentally involves the bridge and I am quite clear that whatever else I can do, I could never in this action find the defender had the rights she plainly wants over the bridge. There are also problems in the pleadings about the route to the east. The way the action is framed simply does not allow any declarator in favour of that and the absence of the map used by the sheriff does not help. It might, however, permit one to say, if it were the case, that the proof shows she had no such right. It would indeed be a pity if after all of this the whole matter were to be re-litigated before the sheriff. The crave of the initial writ did not allow for an argument about the bridge. Nowhere in the Initial Writ No. 13/1 of process, is mention made of any bridge. Also, to the east, an equally serious issue now arises about the plan before the sheriff. The lack of the sheriff court plan also raises problems about the gate and to a lesser extent the cattle grid.
[10]In the action before me only the pursuers deal directly with any right over the bridge (see 29B). This clear averment is not directly answered by the defender and nowhere does she say she had a right to go over the bridge unless the expression "said access road" in the plea-in-law can bear that interpretation.
[11]The second part of the Record seeks to interdict enforcement of the decree generally and in particular in relation to a cattle grid and gate erected by the pursuer; and interdict against continuance of a related summary application by the defender. These last matters have assumed less importance as the proof went on.
[12]It is very important in an action of this kind to look in the original action at the relevant craves of the initial writ; what the sheriff granted and what productions were before him. This has to be set against the burdens in the relevant titles.
[13]The crave of the initial writ (No. 13/1 of process) sought "... to find and declare that (Mrs Fiddes) has a servitude of access, both vehicular and pedestrian, over the road leading from the main road to her croft, as shown on the plan annexed and executed as relative to (Wm Campbell's 1980 disposition from the Trustees)" (Crave 1). Crave 6 went on to seek removal of a cattle grid "... shown on the said plan ...". Crave 7 sought removal of a gate "... shown on the said plan ...".
[14]In the Articles of Condescendence before the sheriff the right of access from the main road was described as "... along the track marked in blue (my emphasis) on the plan ..." (Cond. 2). In Condescendence 5 Mrs Fiddes averred alterations "... to that part of the access route coloured red (my emphasis) on the plan ...". Reference to the gate coloured blue and installed in 1991 is found in Condescendence 6. Now throughout the proof before me this plan (which I call the sheriff court plan) was never produced. As far as I am aware it had never been seen by anyone except perhaps by Mr McKeown (see e.g. 35, 42, 56 in his evidence). Although he had never visited the locus before raising the action, he must have lodged the plan. It is also unclear to me how the colour red was put on the plan where it is alleged to be (i.e. the alteration). In the initial writ the "alterations" have no date but at the proof before me were shown without contradiction to be long after 1980. The "blue" gate is also a mystery since if it was installed in 1991 it could never have appeared in the 1980 plan. All of this makes me conclude that the sheriff court plan must have been specially prepared for that action by someone. As I have said, the sheriff court plan is not in the process before me. On the last day of the hearing on evidence counsel for Mrs Fiddes conceded that it was "lost". That loss is unexplained. No action has been undertaken to prove the tenor of the lost document. (It may be because the casus amissionis cannot be relevantly averred.)
[15]What the sheriff granted is found in No. 13/2 (dated 4 February 1993) and he granted the craves mentioned above (apart from the cattle grid). In finding 6 he gave a process number to the map.
[16]The absence of the plan in the proof before me has created difficulties. In the first place it cannot be certain what the sheriff decided. It was assumed that the coloured sheriff court plan was the same as the 1980 title plan and for much of the proof I have had to proceed on that basis. I shall return to that shortly. However, of more importance was the submission made in argument that the whole proceedings before the sheriff must be presumed to be regular (omnia praesumuntur rite et solemniter acta). I cannot agree to that when the very cornerstone of the case is lost. There was never any suggestion that the Bells or their advisers had anything to do with its loss. That must be correct since they never saw it. (See Mr Bell 111/16; Mrs Bell 362/4 and 442/3; John Campbell 279 and Mr Brownlie 691.) When one comes to look at the title plans it is clear that although they speak of colour, these colours are not put in the same way or places as in the sheriff court plan. Mr Bell's 1979 title (No. 13/4 of process) only refers to the colour red in relation to the boundaries of his croft. The Trustees who sold to him reserved to themselves and successors the right to use "... all existing rights and ways over the subjects hereinbefore disponed serving the said remaining lands remaining in our possession ...". There is no mention of vehicular traffic at all. Campbell's title (No. 13/5) mentions colours twice. Red is used to delineate the area of the croft on the plan. Blue is used to refer to "the track". The right of access is referred to as part of the privileges and pertinents, and is called a "... right of access for vehicular and pedestrian traffic to and from the subjects ...from and to the said public road along the track marked in blue on the said plan ...". This is the first mention of "vehicular". On the plan the word "track" does not appear except to the south where a different track is so described.
[17]It is thus clear that the sheriff court plans must have been different to the title plan and that problem will simply not go away. Inter alia it raised questions of whether vehicular access went all the way to the Fiddes' croft and if it did by what route in 1980, and now, and by what kind of vehicles.
[18]A number of authorities were referred to in the action before me which I now list. Robertson's Executors v Robertson 1995 S.C. 23; Black v Alltransport etc. Ltd 1980 S.C.57; Nunn v Nunn 1997 S.L.T. 182; Murdoch v Murdoch 1973 S.L.T. (Notes) 13; Hill v McLaren (1879) 6 R. 1363; Millar v Christie 1961 S.C. 1; Moyes v McDiarmid (1900) 2 F. 918; Bain v Smith (1871) 8 S.L.R. 539; Bowers v Kennedy 2000 S.C. 555; Ewart v Cochrane (1861) 4 MacQ. 117; Clark v School Board of Perth (1898) 25 R. 919.
[19]Before I come to the detail of the evidence, it is necessary to make a number of uncontested findings in fact and to begin with I make these in general terms with a broad brush. To do so here helps in the understanding of the case. These relate to matters, agreed, not seriously disputed or not cross-examined. It will be necessary later to paint in the technicolour detail of the disputed evidence over the following initial plain general black and white background, and deal later with what is in issue.
[20]I begin with history limited at first to the calendar. The pursuer is now 64 and has a memory of his croft going back to the 1940s. The croft is a working croft and he took it over as tenant in 1956. The defender's croft, which was not worked, was occupied by Neil Campbell until his death in 1966. He was the defender's father's uncle and did not enjoy good health. His nephew William Campbell succeeded to the tenancy. He lived in Glasgow and came to the croft some years later. The black and white aerial photograph No. 20/3 of process was taken in the 1960s and shows the pursuers' croft and some of the surrounding area at that time. In 1978 the pursuer married for a second time Caroline Gairns (the second pursuer) and she came to live with him at the croft. From that time onwards the rear garden to the south was laid out and improved by her. In 1979 the pursuer and his wife purchased the croft from Laggan Estates. His title and plan are 13/4 of process. The plan is based on the 1899 Ordnance Survey Map. The 1899 map is 17/2 of process. William Campbell purchased his croft in 1980. In 1980 a new Ordnance Survey Map of the relevant area was produced. It is No. 17/1 of process. In 1983 the pursuer, with grant aid, made a new road to the east of his croft (the "east road") into and towards his distant fields and boundary. The start of it is seen in No. 17/5 (bottom right). That was done for his own crofting purposes. In 1984 William Campbell applied for a grant to upgrade the track leading from his croft to the west towards the pursuer's east boundary. In 1986 a fire destroyed the pursuer's croft. In 1987 said croft was rebuilt on the original site. The plans for rebuilding it are No. 34/1 of process. From that time the front garden was laid out. In 1988 the defender got title to her croft as the new owner. In 1991 tarmac was laid from the pursuer's croft to the main road. The defender's agent had not seen the locus before the sheriff court action was raised.
[21]Moving from these facts to the areas of difficulty I now deal with credibility. To a large extent the assessment of factual matters happening in and around the crofts over the many years depends upon the principal witnesses. Essentially these were both pursuers and the defender. The various supporting witnesses to fact were only able to point to detail, or speak to limited periods. The professional witnesses were able to help within their limited remit and I deal with them later. I would have like to have heard from the landlords and the Ordnance Survey but no doubt there were good reasons why they did not appear.
[22]Mr Bell was a quiet reserved man. He gave his evidence in a careful fashion and was not prone to volunteer information. He had lived on the croft all his life and I am satisfied that his memory of dates and events is reliable and accurate. He did not openly criticise the defender nor did he respond to her acts of provocation. Mrs Bell gave evidence at length, and from the time she came (1978) I found her memory to be clear and accurate. Like her husband she was not prone to offering criticism of the defender. I also attach some importance to the fact that the pursuers did make some offer to settle with the defender, to allow vehicular access.
[23]Where the defender's evidence differed from the pursuers on disputed matters, I had no hesitation in preferring the pursuers. They were in any event better supported by other independent evidence.
[24]The defender in evidence was prone to make accusations on matters which were never directly raised with her and many of which were never put to the pursuers. There are a number of examples. She claimed the pursuers slashed her car tyres. She said Mrs Bell was convicted when her dog bit her. An alleged car incident in May 1992 (see 1076) was never put to Janet O'Donnell (her own witness). The pursuer was never asked if he strengthened the bridge in 1987 when he rebuilt his house. That matter is not on Record either.
[25]It was also clear that she neither trusted the pursuer Mr Bell or the Laggan Estates. It is hard to understand why she rejected Bell's offer to upgrade the ford and even harder in relation to the Estates' offer. That may have related to matters arising in a forthcoming action in the Land Court which was not explored in detail at this proof but which I will refer to later. Her position with Laggan was extreme. She was prepared to accused Mr Wilks (not a witness) of being illegal, immoral and devious. That does not appear from the open correspondence. In spite of the many court actions she denied there was any "vendetta".
[26]I also have some doubts about her early memory of the croft. Her early visits were day trips and for short holidays. I doubt that she was really attentive to who drove where and how far. She is either deliberately untruthful or at best for her gravely mistaken about when the bridge appeared and the black and white photo flatly contradicts her position. Late in cross she changed her position and called the bridge "something where you were not going through water".
[27]She also had to admit a conviction for breach of the peace and statutory vandalism arising from confrontation with the Bells and to putting superglue in their gate lock to cause, as she agreed, "most inconvenience".
[28]Let me now look at the evidence given about the critical facts, some of which were disputed and I begin with Mr Bell. His evidence was not lengthy. As to dates and times he was clear. He described the building of the bridge in 1974 with Currie at various passages (e.g. 47, 73) and denied any recent improvements to it (191). He was also clear about the date of the fire in 1986 (page 90) and the rebuilding and subsequent development of the front garden. He was able to speak with confidence to the black and white photo No. 26/3 which showed the croft probably in the 1960s. He identified the plank over the burn and spoke to the primitive track from the main road to his own croft and beyond in the years before 1960. He was quite clear that how Neil Campbell got to the ford was dependent upon what crops were in the intervening fields and that he, and later William Campbell and his family and visitors, walked to the croft from the ford.
[29]He described (82) how he built the east road in 1983 and that after that vehicles serviced his fields via the bridge and the road he had just made. He said that access to the Campbell croft could still be taken by a suitable vehicle and up past the fields. He was quite willing to allow that and assist in it. He said the Campbells had no vehicle or horse and cart (a matter not disputed at least before 1980). He proved in evidence where the gates were (seen in 17/5 and some of the other colour photos (e.g. No. 27/7)). It is clear to me from his evidence that in relation to court proceedings, he was an "innocent abroad", and relied on others who let him down badly until Dr Gray intervened. (I of course exclude from any such criticism Mr Campbell and Stirling and Gilmour.) The extent of Mr Bell's difficulties is proved in the letters which I deal with elsewhere. He never saw the sheriff court plan. In evidence he made it clear that his defence always was that any right of way was over the ford. He spoke to the cattle grid (now of less importance) and to the vendetta by Mrs Fiddes (e.g. 212, 214, 239). He did not remember any visit in 1980 by the Ordnance Survey to redraw the map.
[30]He did not agree with what was said by Duncan Murray, Annie Carmichael, Duncanina McLeod and Angus McMillan about vehicles being driven beyond his croft. At page 168 it was only faintly suggested to him that the bridge was in existence before 1974 which Bell flatly denied. When Hugh Currie came to give his evidence on day 3 he was not cross-examined about the bridge or its date. That I think is important.
[31]Out of all this detail the matters most important to reduction are what was the defence to alleged vehicular access over the bridge and on by the east road and whether the pursuer in all the circumstances was now entitled to reduction.
[32]To consider this further it is necessary to consider what Mrs Bell said. When she married Mr Bell in 1978 (there is an error on page 244 where 1998 is given as the date) she went to live at the croft, by which time the bridge was there. She confirmed that a tractor or motorcycle could cross the ford which she identified from the colour photo (No. 17/5 taken in 1994). She was there when the east road was built in 1983 (see page 338) and spoke to extending her garden north to the ford after the 1986 fire (page 487). In the period between 1978 to 1983 she was clear that nobody to her knowledge drove to the defender's croft. What was done was to drive to the burn then walk. She said that at the time William Campbell only came for holidays and in summertime. She was, I think, the only witness who said that someone might have come from the Ordnance Survey to redraw the 1899 map in 1980. She gave a great deal of evidence about the cattle grid and gates but I need not narrate this in view of what has been conceded. She gave the detail of the events which led to the defender's conviction (page 473) and a number of other details of the vendetta and bad feeling, e.g. page 544 about the superglue in the lock.
[33]So far as the various court actions are concerned, her position mirrors that of her husband and I need not rehearse it.
[34]Both pursuers are thus consistent on all material points. I have already said what my view is about their credibility and I now test this further by looking at the other evidence led for them. It is important to see how credible others are, what opportunities they had to observe and recollect and over what period and whether all material matters can be said to be proved on a balance of probabilities. The material matters relating to the court actions are a separate chapter.
[35]What then can be said about the credibility and reliability of the other lay witnesses. The importance of their testimony is in relation to the bridge, the access to the Fiddes' croft and, to some degree, what I call the east road over the Bells' croft.
[36]Wilma Calloway was a daughter of the pursuers. She was 35 when she gave her evidence and so must have been a young child and teenager in the 1970s and 1980s. She lived and grew up at Glenegedale. She was a careful and measured witness. She confirmed that the crossing place was the burn and the bridge was not built until 1974. She said that neither William Campbell or his family took a car to the croft as that was impossible. She did not remember any track between the crofts and confirmed that her father built the east road in 1983. Post was always left at her parents' house for collection. She did not depart from any of this in a brief cross-examination.
[37]Her aunt and Mr Bell's sister Mary Reid was 78 when she gave evidence. She grew up on the croft and although she left in 1953 she returned often to see her brother. She confirmed that Neil Campbell had no vehicle, nor even a horse and cart and walked to his croft. He did not work the croft. The only way a vehicle could get up was through the ford. Any van coming would stop at the Bells' croft and Neil Campbell would walk down a path at the edge of the fields. The field to the east had various crops from time to time. Her brief cross-examination did not alter this evidence.
[38]Mr Bell's other sister, Christina Black, was 68 when I saw her. She explained that before the bridge, people on foot crossed the burn by the plank and, if going to the Campbell croft, went over the ford and (in cross) walked up a track at the side of the fields. She never saw any vehicle go to the Campbell croft apart from a horse and cart used by her own father. Precisely where it went and how often is unclear. Neil Johnston (69) was Mr Bell's cousin. He confirmed that there was only a footpath between the crofts and that it ran between ploughed fields. No van ever went to the Campbell croft and groceries were bought from a van which stopped near the plank.
[39]It is true these witnesses were related but it was never suggested that their evidence was biased or invented. In my view it is both credible and reliable. It is consistent with what Mr Bell said. The description of the ford and the bridge in 1974 fit all of the other evidence (except the defender) and when they say that no vehicle drove up to the Campbell croft that I think shows an inherent probability, both from the old photograph and the descriptions of the ground and the cropped fields. No doubt it would be humanly possible for some determined person to drive an ordinary van or car over a path between ploughed fields to the far croft, but such a feat is not the issue. The issue is whether there is proper proof that this happened to a degree which would create an existing vehicular access by 1980.
[40]A further way of testing the credibility of this evidence as opposed to the witnesses themselves is to see if it fits with other or independent evidence. Let me now look at that.
[41]Hugh Currie (45) gave evidence on the third day. He gave the clearest possible evidence that the bridge was built in 1974, the year his son was born (394). He helped Mr Bell to build it and described what was done. Importantly he spoke to being able to take a vehicle over the ford which he identified in No. 27/8, No. 6. It could be crossed by foot or by tractor. Under reference to 26/3, he could remember the fields to the east and said there was no road there then. In cross-examination he described a path going upstream from the ford (i.e. to the east). He said that no vehicle (403) or car (405) could get up that way. More recently he had gone there in a lorry.
[42]I accept this witness. He gave his evidence carefully and without embellishment. I am satisfied he is accurate about the bridge date and the unlikelihood of a car getting up before 1983. His visit with the lorry was in 1989, by which time, of course, the east road was made. Interestingly he said a 4x4 vehicle could have got up via the ford and fields. Once again this fits Mr Bell's account.
[43]George Rhind (59) was a retired local government officer. He gave evidence of one matter only viz. his visit to Neil Campbell's croft in 1966 when he had died. I think that what he described (412/3) was truly the existing means of access to that croft at that time. He drove in a van to the ford, crossed over, parked at the Bells then walked up over the moor. The small van he went in could not have been driven to the croft. This fits the inherent probability of the whole situation. Of course once the bridge was built and the east road made no doubt many types of vehicles could drive up, but that is not the point. Rhind is an important witness. He was not cross-examined at all and I accept his evidence and attach importance to it.
[44]Mary Reid (age 78) was the pursuer's older sister. She grew up in the croft but left Islay in 1953 after her marriage in 1946. She has lived in Glasgow since, making occasional visits to the island to see her brother. She confirmed that Neil Campbell had no horse and cart and walked from his croft. He crossed the burn by the plank. There was a "wee path" between the crofts beside a field (423). Her brother planted crops in his fields to the east (turnips, potatoes and corn). In cross-examination she denied that Neil Campbell's mother, whom she knew, had a horse and cart. She was not challenged on any other point or conceded any other matter. I accept what she said. It is consistent with the pursuer, her brother.
[45]Christina Black (age 68) was also a sister of Mr Bell. Like the last witness, she left the croft in 1953 to live in Glasgow. She confirmed that No. 26/3 was an accurate photo of the croft in the 1960s and there was no bridge. People crossed on foot over the plank. A horse and cart would have to cross through the burn further up (east). She dismissed as "ridiculous" any suggestion of vehicles going to the Campbell croft (433) as there was no road there. She accepted in cross-examination that south of the burn a track or path led to the far croft. The only proved use of it was where her own father took his horse and cart up to cut peat or to make a delivery. Once again I accept this. It is consistent with her brother.
[46]Islay Livingstone (66) spoke to rebuilding the Bell croft after the 1986 fire. The work was done in 1988 and on the same foundations of the old croft. He spoke to No. 34/1, the rebuilding plan which he said confirmed that. Cross-examination did not alter that. I accept him as accurate and reliable.
[47]Morag McDougall (63) was a manager with the local Co-op whose mobile shop van made deliveries to the Lots. She said that the van did not drive across the burn but remained on the north side. It has to be said that her evidence about this was hearsay since Mr Jamieson, the van driver, was dead. No objection was taken and quantum valeat it agrees with Rhind.
[48]Finally, of the proof witnesses on this point for the pursuers is William Currie (64). His evidence was led, without challenge, that he helped to build the east road in 1983. The length was 300 yards which is considerable. The west most point he identified is No. 17/5 (pages 618/9). Lest she was overlooked, Mrs Johnston (43) was led on the importance of cattle grids and gates. I do not have to analyse her evidence since the issues on these points can be resolved by what was said by counsel.
[49]The remaining witnesses for the pursuer gave evidence on commission viz. Donald McKerrall (81), Dr Campbell (95), David Woodrow (72) and Dr Gray (84). This evidence was in retentis long before the proof began. The commissioner, Mr I. H. L. Miller, advocate, was asked to give a view on credibility and reliability. I refer to what he said at paragraph 5 of his report. In paragraph 6 he especially commends Dr Campbell and Woodrow. In paragraph 7 he comments on three of the four witnesses led for the defender. He is critical of the accuracy of what they said. He makes no comment about McKerrall and Gray or McMillan who was a witness for the defender. There was a second commission in July 2001 to take evidence from Trevor Williams (65) who was in poor health at the time.
[50]McKerrall was a retired councillor and was familiar with the crofts over a long period - since the 1930s. He remembered the ford opposite the Bells' croft, the plank for pedestrians. Horse and cart would cross by the ford. He described two different tracks from the Bells' croft to the Campbell croft (pages 21/2 and 29/30 and 59). After the war he was a postman and made deliveries into the 1960s. He used a bicycle to get to the croft. He walked with any mail for Campbell. He did remember Bell using a horse and cart or tractor in his own field between the crofts to cut peat. He only once attempted to take a vehicle up (28/9; 43 and 63 et cet.) but this was a failure. He remembered the bridge being built but could not say when in spite of being pressed on the point. He said that Neil Campbell had no horse and cart.
[51]Dr Campbell was a general practitioner in the area from 1928 to 1939 when he went to the army. He remembered the ford and the plank for pedestrians. He would not take his car over the burn. Between the crofts were only sheep tracks and he saw no evidence of animals or carts at the Campbell croft. The main tenor of his evidence was that to get to the Campbell croft you had to walk.
[52]Woodrow was a retired district clerk and had a long acquaintance with the area. He had to visit Neil Campbell regularly and did so until his death in 1966. By then the witness George Rhind was also visiting. He was Mr Woodrow's assistant. He described how he got there. He drove to the Bells' croft, occasionally crossed the ford and then walked the rest of the way. He described the track to the croft he visited as probably negotiable by tractor but "(112) ... would not advise anyone to take a car ...". He said there was no bridge when he visited Neil Campbell. He went on to agree (124C) that using a car would be foolhardy and (127) that a tractor and landrover could cross the moor without any road.
[53]Dr Gray, although familiar with the area, really came into the case in 1993 to help the Bells and put them in touch with solicitors. Early in his evidence (134) he was asked for an opinion on Bell's title and this provoked objection, adjournment and many further objections. He also spoke at length to the attempt to compromise by the north route. I refer further to this witness later on.
[54]I cannot, of course, make direct findings on credibility of these witnesses but I can address the credibility of their evidence. The evidence given is direct best evidence of what they saw and did. The evidence about access, the ford and the near impossibility of taking a normal car up is consistent and is not in any way self contradictory, and is in my view inherently probable. I am entitled to rely on it and do so. The fact that it also fits with the Bells is a further reason to rely on it.
[55]What then did the defender's proof disclose? I have already commented on her credibility but it is necessary to look further at what she said. She began her evidence on Day 5 and was aged 64 at the time. She did not become the owner of the croft until 1988. She could remember it from when she was 10 years old (i.e. 1947). Until Neil Campbell died in 1966 her visits were only day trips as she stayed elsewhere in Islay. At that time she maintained that someone called Donald McKenzie drove her to the croft along what she called "a road" (768). By her description she must mean through the fields to the east of the Bells' croft (see also 795/6).
[56]After 1966 she went for a few weeks as an annual holiday until about 1983. From then until 1988 she was hardly ever there. She went to live there in 1988.
[57]The next important part of her evidence concerns the ford and the bridge. She said that the ford over the burn was in the same position as the bridge is now under reference to 17/5 (page 777). Then at page 779 she maintained that there was a bridge in the 1960s "like a big round concrete" (see also 802/3). She said that it was there until 1985 and was later strengthened. She then described a number of people who visited and "drove right up" and that there was only "one way up". By this I assume she must mean over the bridge she described and on by the road through Bell's fields. Lots of deliveries, she claimed, were made by vehicle to her croft, from letters to a load of coal. Even a Raeburn cooker came in a MacBrayne's lorry, although this was after 1980. Going back in time (793/4) she said her great grandmother had a gig and horse to sell eggs. This related to a period before the defender was born.
[58]She described the extensions to the Bells' garden which, according to her, did not encroach on the road up. She appears at page 800 to want to contradict Mr King (her expert) as to where the ford is. Her evidence continued about the alternative access and other actions she had begun (looked at in more detail by me elsewhere). She then mentioned what her counsel described (827) as a "few difficulties with the Bells". She had given a long answer to me at 825 which, I regret, says more about the witness than the topics mentioned, none of which were put to the Bells. The matter was in my view made worse for her on the next page.
[59]When she was cross-examined her spite towards the Bells became all too obvious. She showed some reluctance to deal with how drains were blocked, and her reasons for superglueing the padlock reflect no credit on her. She was consistent about the bridge being there before 1974 and at page 944 made it quite clear that she considered her access allowed her to go over the bridge and that was what the sheriff had granted to her. She had to accept (962 onwards) that there was no explanation for her account of the bridge not being in the pleadings. Her evidence on these pages and in particular about No. 20/8 of process is quite unconvincing and in my view untruthful. It is inconceivable that in 1994 Mr McKeown would not have known about the bridge if she had told him. This opinion she held about the bridge caused her to dispute the evidence of any commission witness who said they had gone through the ford, even her own witness Annie Carmichael. For reasons already given with other witnesses, I do not require to deal with what she said about the position of the gates and the cattle grid, except to notice that she claimed that her solicitors never told her about the gate on the bridge being closed (1040/42), a matter later denied by her own witness Mr McKeown (84/88). Her whole evidence about efforts to compromise with Laggan Estates or the Bells showed she was unwilling to do so.
[60]Her re-examination was very brief and did not attempt to address the many problems thrown up by a very skilled and searching cross -examination.
[61]Credibility apart, I cannot accept her evidence as reliable on the disputed matters. In the first place her contact with the croft was very limited until 1966 and only thereafter for holiday periods until 1983. She has only lived there since 1988. Her evidence about the bridge stands alone and is flatly contradicted by a body of other acceptable testimony. It was never put to the pursuers or Currie. It is not covered in Answer; all of which makes me conclude it is invented and was heard for the first time at the proof. Her evidence about a "road" through the east fields in the 1940s cannot be accurate. It is contradicted by a body of other evidence that any road only appeared in 1983 and by No. 26/3 of process. She has contradicted her own expert, her solicitor and one of her witnesses to fact. Her attitude to the landlords and the Bells is open to reasonable criticism. At times, though I do not heavily rely on this, she was reluctant to answer perfectly reasonable questions in cross-examination.
[62]At the proof she led two of her daughters and her brother and I now turn to look at their evidence. Janet O'Donnell was aged 36 so must have been born in about 1965. Her contact with the croft was holiday visits until the 1980s. In a very long answer 838/41 she described a bridge and a "road" to the east. She said the road was hard packed stone. She said the bridge and road were there in the 60s. She described vehicles going to the croft.
[63]At the very start of her cross-examination she agreed most reluctantly that she had spoken to her mother about the case while the defender was still on oath. She claimed to be able to remember details when she was 3 years old, for example that there was a bridge (872). She was very unclear about the bridge being built in 1974.
[64]I do not accept this witness. She had to admit discussing the case with her mother to some extent and, for reasons already given, I hold her account of a bridge before 1974 and a road to the east to be inaccurate at best, or invented at worst.
[65]Her next witness was Niallann Cuthbert aged 38 (thus born in 1963). She undoubtedly agreed with her mother on a number of matters but, like her sister, her early memory was as a young child on infrequent holiday visits. She maintained she was driven to the croft by her father or McMillan (contrary to what McMillan said). She maintained (1133 onwards) that there was always a road to the east. She described others driving to the house. In cross-examination she said the bridge had always looked the same (1151) and had difficulty accepting that the bridge was built in 1974. Later in cross she agreed with a suggestion that her mother had to some degree discussed the case with her (1162). I do not accept this witness. I cannot believe her early memory is accurate and she is simply wrong about the bridge and any road to the east. The weight of evidence is against her on both points.
[66]The last witness to fact was William Campbell, the defender's brother. He was aged 57. He went to the croft for holidays from 1970. He spoke to a road to the east but his evidence about the bridge is of a slope down then steeply up to the Bells' house. That differs from the defender's account. He claimed that he and others had driven to the far croft.
[67]I found his evidence about the bridge and the various improvements to the road to be vague and confusing; but what is more important he was driven to agree that he had discussed the case with the defender (157 in particular). That I think is fatal to accepting him as a witness of any credit.
[68]Mr Gordon King was the last witness for the defender and by the time he came to give his evidence the defender had accepted that the sheriff court plan was lost. He had never seen it and so to that extent his evidence has to be looked at with some caution. Plainly without it he, like the rest of us, could not be confident about what the sheriff found.
[69]What he did have were the plans in this action, certain photographs and a site visit. What he endeavoured to find was the crossing point of the burn on the 1899 map and on that matter his evidence was not challenged. He found it to be (283) over the ford which in his report of 8 February 1995 was 24.1 metres east of the Bells' bridge (No. 23/7 of process) (see paragraphs 8 and 10). His conclusion suggests a conveyancing error by the use of an out-of-date map.
[70]I do not intend to rehearse his evidence in detail since I do not think a site examination after all these years can show what use was made before 1980. I think his evidence about the existence of a track or road to the east before and after 1983 is inconclusive and is not of sufficient weight to contradict the pursuers and William Currie, who made a road there in 1983. It certainly does not prove a road fit for vehicles.
[71]To the extent that his visit probably proved the ford he assists the pursuers not the defender. No issue was taken with him that the map showed the continuation over the ford to go through what is now a garden.
[72]I now require to look at the defender's witnesses at commission.
[73]Angus McMillan (67) operated a taxi business. He began by saying (181) that he had never driven to Mrs Fiddes' croft but later (183) agreed that he had. He also described going over the bridge and then by what must be the "east road". At 184 he said this was in the 60s and 70s but this cannot be correct as there was no bridge till 1974 and no east road till 1983. In fairness when he gave this evidence in March 1997 none of these matters had yet been proved. However, at 188 he said that there was no car access until the road beyond the Bell croft was made (see also 191). He said that William Campbell and his family were only holiday visitors and that he would drive them to the burn; thereafter they would walk up. I have to say that the earlier part of his evidence is self contradictory, and that it is inherently improbable that he ever drove to the Fiddes' croft before 1983 at the earliest. The last part of his evidence fits squarely with what the pursuers' witnesses say, i.e. car to the burn, then walk.
[74]Annie Carmichael (75) was related to the defender. Her evidence was brief. She said she visited the Fiddes' croft, not often and in the early 1970s. She said she was driven in a Mini, in summer, through the burn and up by a rough track. Where this track was, was not identified. This evidence, apart from the defender, almost stands alone. The apparent ease of the journey does not square with McKerrall's account of his awkward journey. I have to say that I find her evidence inherently improbable. She claimed that Angus McMillan used to take the Campbells up but in the 1970s that does not agree with what he said. I consider that what she said contradicts McMillan if she is speaking of the 1970s, and before the bridge.
[75]Duncan Murray (75) was related to the defender. He said he "took the car right up" (204) to her croft and, at various times, he said that was easy. I think he was initially speaking of very recently. Then he said he went in the 1920s. I am satisfied that he could not have remembered that far back. There he said he went in the 1970s and visited the Campbells very frequently. That I find surprising since they only went on holidays. At page 210 that contradiction is plain. His cross-examination does raise the possibility that his evidence may have been influenced by admitted discussion he had with the defender and a visit to the bridge. I find I can place little reliance on his evidence. It is not consistent (at least to dates before 1983) with any other witness.
[76]Duncanina McLeod (72) was an aunt of the defender and the sister of Mrs William Campbell. She went once to the croft to look after her sister; but in spite of many questions was quite unable to say when. She opted for the 1960s. She was unable to describe how she got from the Bells croft onwards. She did not remember any bridge. Later on in cross-examination she agreed that Angus McMillan took her so far and she had to walk the rest. I find this evidence to be vague, imprecise and not really reliable. Only the last part of her evidence, i.e. car to the Bells then walk, fits with McMillan and is indeed consistent with what the pursuers say.
[77]Accordingly this whole body of testimony given for the defender on commission is of little value to support what she said. Much of the body of it is inherently improbable and among the witnesses there are contradictions on dates and other details.
[78]Trevor Williams (65) was the last witness on commission. The commission, No. 35 of process, was on 26 July 2001. By then he had had a severe stroke (see No. 28 of process from Dr Pearce dated 29 May 2001). His memory was not good and his speech apparently affected. Much of his evidence seems to have been taken by leading questions. He was a postman and delivered mail to Neil Campbell until he died. He said he drove to the croft but at other times he had to walk up. He said he did this up to 1990 when he left the island. He always drove through water. He said the road was never improved and he does not remember any bridge. He claims the road to the far croft was straight. However he has no memory of the fire at the Bells' croft. I cannot rely on this witness. If he does not remember the bridge, he may have ceased to go there before 1974. If he continued after that and delivered mail to the Bells, it is inconceivable that he would not have crossed the bridge. After the fire it took time to rebuild and if he was there then he must have seen what was going on. He was a sick man and the confusion, conflicts and gaps in his evidence are not his fault. It also has to be said that he is very vague about dates.
[79]That leaves only one witness, Duncan Fraser who gave the affidavit No. 32 of process on 5 June 2001. He was a retired gamekeeper aged 67, and had worked on the estate for 40 years. He drove to Neil Campbell's croft but did so in a landrover. What he does not say is what route he drove and he was not referred to any map or photograph. He remembers driving through a ford near the Bells and other streams and burns but he does not remember the bridge. That I find surprising. He then said that he only went "up there" twice a year. I suspect his close involvement with the far croft ended when Neil Campbell died in 1966. The only importance I can attach to his evidence is that in rural areas people may have to take vehicular access by means of vehicles such as landrovers, motorcycles or 4x4s. The terrain shown in the various photos is more suited to larger wheels, suitable tyres and suitable engine gearing drive.
[80]I now wish to look at that area of the case concerning the events surrounding the various sheriff court actions. In a sense much of the evidence about this is not greatly contentious although the correct interpretation of it may be quite another matter. It admits of findings in fact as the evidence unfolds. It has to be borne in mind that what the sheriff heard was given him ex parte by one side with the benefit of the map which is now missing. What I heard was a full proof with many more documents. The averments dealing with all these matters are contained in Articles 4, 6, 7 and 8. The letters were fully proved in the whole evidence of Mr Brownlie and Mr McKeown the solicitors. Some of what follows here has been mentioned earlier in a different context to do with the map.
[81]I find the following to be established. The initial writ (No. 13/1 of process) was at the instance of the present defender and was served on the pursuers on 6 January 1993. The crave is signed by Mr James P. McKeown (later a witness). The craves principally sought a declarator of servitude both pedestrian and vehicular over "the road ... as shown on the plan ..." (called "the access route" in Condescendence 1 and coloured blue on the plan). There were craves for interdict and other orders in relation to the cattle grid and the gates. The warrant to cite is dated 29 December 1992 and Mr McKeown's execution of service on 6 January gave an induciae of 21 days. It is quite clear on the evidence of both pursuers that this initial writ was received by them at that time. However, accepting this evidence, I am also satisfied they got no plan showing the so called "access route" or any plan showing any gate (see evidence 111, 116, 355 and 362).
[82]The pursuers said, and it was never disputed, that they contacted their solicitors Mr Ruben V. Murdanaigum who practised as a solicitor and notary in Lochgilphead under the name of A. Smith & Co. The initial writ was sent to him by Mr Bell (see 117 and 353/4). I hold it proved that this solicitor was instructed to act and indeed sent legal aid forms which the pursuers completed and returned. The solicitor was never a witness before me but I am satisfied he did nothing.
[83]Before continuing I should observe that there is very little background to the raising of this action. Some question arose in 1992 about the obstruction of the road during tarmacadaming but it seems to me this was resolved in correspondence. It certainly gave no hint of what has since followed. Certain contemporary letters show the position viz. a letter to be found in No. 26/1 of process dated 28 February 1992 from Mr Murdanaigum to C. & D. McTaggart and three letters dated 27 August (2 letters) and 29 August 1992 from McTaggart & Co. to the parties. The concluding paragraph of the last letter gives no hint of any action.
[84]Because no notice of intention to defend was lodged by 4 February 1993 the sheriff in absence granted decree as sought (apart from the cattle gird) and that was extracted on 19 February (see 13/2 of process). Mrs Fiddes (944) was quite clear the sheriff had granted her a right going over the bridge.
[85]I now have to consider what did happen between service and extract. That depends upon the evidence of the pursuer's witness Mr Sadler and the defender's witness Mr McKeown and certain contemporary documents. Sadler practised then as a solicitor under the name of Goodman Steiner & Co. in Dunfermline. He said (628) that he was a sole practitioner with an assistant Ian Beatson (not a witness). That is hard to reconcile with a letter dated 16 March 1993 (No. 27/6 document one) which shows a Mr Ian Grant as a consultant. I may have to return to this letter but paragraphs 4 and 5 are of importance at this stage. Murdanaigum instructed Sadler on 12 January but Sadler failed to enter appearance. Sadler was not the most reliable witness. He seemed reluctant and his memory of events was not clear. That is disappointing in a professional person. He could not remember with clarity how he got the papers from Mr Murdanaigum but thought they came from a Mr Grant in Auchterarder. I do not know if that was his former consultant but Sadler did say the firm was "Ian Grant & Company". I am sure that the Bells had no idea that their papers had ended up in Dunfermline via Auchterarder, and that they were now represented (in a sense) by someone they did not know and had never met and to whom they had given no instruction (see 118/20; 443/7).
[86]Prior to the attempt to repone, it is not necessary to analyse further the evidence of Sadler. I find that the explanation in 27/6/1, already mentioned, is a poor excuse for Sadler's own failure to act and in allowing decree to pass. He had ample time to prevent that happening.
[87]All of this is confirmed by the evidence of Mr McKeown (pages 16 and 55) and his file note (No. 23/3) dated 5 February after decree passed. I also find it clear from this witness, that neither he nor his assistant Mrs Hunter had ever been to the locus when the initial writ was prepared by Mrs Hunter.
[88]I now deal with what is established about reponing by which time the pursuers were represented by Sadler and locally by Mr Campbell. The reponing note (No. 13/3) is a short and untidy document. It seems to have been signed by Mr Sadler but prepared by Mr Beatson and amended by him. The amendment is important because it appears to concede a right of way (see 636). No. 27/6/1 instructed Mr Campbell of Stewart Balfour & Sutherland and I refer again to the letter. It purports to explain the defence in the reponing note. It is wholly unclear how the detail of that could have been written. Sadler could not explain how he had any of these details (641; 656). I am also satisfied that at this stage the Bells were quite unaware of what was happening and I have noted above the relevant parts of the evidence.
[89]A reponing hearing took place. The reponing note (No. 13/3 of process) makes two things clear, firstly that the Bells accepted that there was a servitude in the title but not one which went over what was called "the new access road". That means the road over the bridge. It was quite clear then, since, and now that the sheriff court action was contending for a right over the bridge. (No mention was made of any roads or tracks further to the east.)
[90]The hearing was on 1 April and before that there were further problems with a plan. Stewart Balfour & Sutherland only got a plan the day before. That fact and what happened at the hearing is proved from documents 27/6 Nos. 2 to 8 and the evidence of Mr Sadler, Mr McKeown and Mr Campbell. Whether this was the sheriff court plan or not is unclear. The reponing note failed, not because of lateness in appearing but because the sheriff did not consider a defence was disclosed. Mr Sadler personally paid the expenses.
[91]Mr Campbell acted as a local agent. He took no instructions from the Bells and did not communicate with them. He had no instructions to appeal to the sheriff principal and no appeal was marked. Interestingly (see 285) there seems to have even been confusion at the reponing hearing about plans. The sheriff did not issue any note in refusing the reponing note, Mr Campbell was not cross-examined and there is no conflict between him and Mr McKeown on these matters.
[92]The next thing which I hold proved is that on or about 26 April the pursuers were sent a copy of the court's interlocutor saying that decree had been granted (see 23/4 and 23/5). It is quite clear to me from an examination Mr Bell's evidence (118 to 123) that he did not understand what was going on or what to do. For reasons that are not wholly clear they met Mr Sadler for the first time at the Royal Highland Show in June 1993. His letter to them (No. 20/12) on 7 May 1993 refers to legal aid in relation to "interdict" sic. Sadler was unable (651) to explain what this was about. Mrs Bell (444 onwards) was equally unclear. In a sense it does not matter since they parted company with Sadler at that time.
[93]The next matter of importance I hold proved is the evidence given for the pursuers by Dr Gray. His evidence was taken on Commission in March 1997 (see report of Commission pages 127/180). At the time he was 84. (His evidence was the subject of many objections at the Commission.) Dr Gray took certain action on behalf of the Bells. He made contact with the Trustee and Factor of Laggan Estates who were the landlords disponing both crofts. He saw Mr Wilks. The result of the discussion (146) was a proposal for the first time to provide the defender with an alternative access which the landlords would make. At the proof it was referred to as the "north route" (it can be seen in No. 31/5 of process).
[94]I pause to observe that it was not disputed in the present action that the defender refused to accept the north route (see 1057 onwards in the defender's evidence).
[95]To return to Dr Gray; at 155 I hold it proved he was also aware that the present defender had a further dispute about the extent of her own croft (see Defender, 920). Most importantly Dr Gray (162) put the Bells in touch with Messrs Stirling and Gilmour in Helensburgh. For the first time (apart from Mr Campbell) the pursuers had solicitors who acted well and properly in what was now a very awkward situation for them. A number of important letters were written by Mr Dow and Mr Brownlie of that firm. At the same time in 1993 the solicitors for Laggan Estates, Messrs McLean & Stewart in Dunblane wrote trying to get settlement on the "north route" and I now look at these before coming to the next court action raised in 1994.
[96]From this point on I have to look at the efforts to settle the problem (Cond. 6) and it is important to take account of the correspondence between the solicitors acting for the parties. All of this has an important bearing on credibility. In my view no issue arises about proof of the letters since many were spoken to by their authors or by those to whom they were addressed or given. The defender also spoke to some of these. Importantly the parties entered into a joint minute, paragraph 12 of which stated that certain productions "... are what they bear to be and may be received in evidence without being spoken to by their authors ...". A number of items are agreed but, oddly enough, not No. 30 of process. I will return to this as it is of some importance.
[97]Some of the correspondence has been lodged twice and what is important was looked at by Mr McKeown and Mr Brownlie and in part by the defender. Nobody gave evidence from Messrs McLean & Stewart. During the currency of the present action in June 2001 Messrs McLean & Stewart sent a bundle of letters to Mr Brownlie concerning the offer of another route (No. 29/1 of process). Included in that is a letter dated 31 August 1993 (copy) which was sent to C & D McTaggart offering the north route as a realistic remedy. No. 20/1 of process appears to be the principal of this letter though it is described as a "Copy" and as a "draft". It also contains handwriting which may be that of a Mr Wilks. It is not signed. Mr McKeown replied to this proposal on 11 October 1993 (Nos. 20/2 and 29/3) In spite of the fact that the new road would be paid for by the estate, it did not seem that Mrs Fiddes was in any way enthusiastic. Interestingly, in paragraph 3 it is clear that the kind of traffic which the defender seemed to want to reach her croft would be "... the farmers Co-operative lorry which is seven foot six inches wide and is heavy ...". I have assumed that the hand-written note on 20/2 is not that of Mr McKeown. McLean & Stewart replied on 22 November, meeting the earlier letter point by point including what was to be done about the lorry (29/4). They claimed the road they were offering was better than the one the defender had. On 24 November (29/5) Mr McKeown replied, inconclusively, but indicated that the defender was prepared to implement her decree against the Bells. That was acknowledged by McLean & Stewart on 29 November.
[98]On 16 November 1993 (No. 20/3 or 29/6) Mr McKeown wrote a long letter following a visit he had made to Islay. Not only the dispute with the Bells was mentioned but also the defender's complaint over the extent of her croft, and the suggestion (para. 5) that Mr Bell may have been given part of it, and the further concerns in paragraph 7. The defender did not seem to want the new route in spite of her solicitor's advice. The spectre of the Bells seems to be the thread through the whole letter. McLean & Stewart (20/4) sent a copy of this letter to Mr Wilks at Laggan which seems to say that Mr McKeown wanted the matter resolved as suggested. On 20 January 1994 Mr Wilks again offered the road (29/7) made "... to whatever standard may be thought reasonable by the Crofters Commission ...". On 25 January (29/8) Mr McKeown replied and raised again the matter of the size of the croft. On 28 January (29/9) Mr Wilks replied that the estate was at the time only concerned with the road. By 2 February (29/10) Mr McKeown was saying that the defender would go to the Land Court.
[99]By this time Stirling & Gilmour were writing, and I will return to Mr Dow's initial letter, but, to complete the offer of the "north route", it is next necessary to note that on 17 May the defender lodged a legal aid application for the Land Court to obtain a corrective disposition (29/11). The facts founded on are brief in the extreme. The Estate object in a lengthy letter (29/12) to the Legal Aid Board on 26 May with a follow-up letter of even date (29/13).
[100]It is unclear to me why Mr McKeown did not tell McLean & Stewart of this legal aid application until 2 June (see 29/14). His letter of that date says that the defender does not want the new road. The reason, in part, was because of the Bells. Mr Wilks acknowledged on 6 June (29/15). Within a month (6 July) the defender's application for legal aid was treated as abandoned (29/16).
[101]I have reread Mr McKeown's evidence about this (pages 30 and 57/93) but I cannot find any clear reason why this offer was not embraced with more enthusiasm by the defender. The solicitor said that there may have been problems with the title and conveyancing, yet the land was apparently owned by the Estate. No investigation was made by him for the defender of what grants she could get from the Crofters Commission. It does seem to me that the defender could have made more of an effort to take up and explore this offer and I can only conclude that she somehow did not trust the Bells' sincerity. I am critical of her over this as the offer was made in good faith and without expense to her. I am also unimpressed by the reason (or lack of one) for the abandonment of the legal aid application (see McKeown 93). This all makes me wonder if the defender ever had any serious intention of trying to settle her dispute or the extent of her croft.
[102]The matter does not end there and, although it is out of sequence, I should deal with it here. New solicitors became involved, and former ones, and I now look to No. 30 of process. This was excluded from the joint minute but was introduced in the cross-examination of the defender. Mr McKeown also gave some evidence about it. In chief from 820/6 the defender gave some evidence about going to the Land Court against the background of the attempts to settle the north route. I asked her at 825 why she was so unwilling and I regret that I was not impressed by her answer. Many of the allegations she made were never put to the pursuers. The cross-examination about this began at 921 when the defender made it clear that she considered the first pursuer had taken some of her land in an underhand way. None of this was, of course, ever put to Mr Bell. The matter was resumed in cross at 1095 onwards and some of the detail of No. 30 of process was looked at. It seems to be in two parts.
[103]By this time(1999) Mr Bell was being advised by a firm in Largs named MacTaggart & Co. (not the C & D McTaggart of Campbeltown). They were acting in correspondence with the Crofters Commission in Inverness over an application by Mr Bell to decroft part of his land (oddly enough they had earlier acted for Mrs Fiddes in the present dispute; see No. 31/1 and 2 of process). The defender was being represented by a firm MacPhee & Partners in Fort William. The correspondence produced to me has a letter missing (from MacPhee on 31 August 1999), but it does seem that her objection led to the Commission withdrawing the pursuer's application. It may have been overreaction by her solicitors to a newspaper advert (1100) but I am unable to tell.
[104]The second fact is that in February 2001 (No. 30/5) the defender is again applying for legal aid to obtain a corrective disposition to the 39.5 acres which she claimed Mr Bell had taken from her. The area is virtually the same as her 1994 application. The solicitors in Largs objected to legal aid (No. 30/2) and there the matter rests.
[105]Whatever else all of this shows it is quite plain to me that the defender has little intention of making peace with the Bells. I think she used the alleged crofting dispute to frustrate the attempt to settle (see also Brownlie 685, 692). For what it is worth Mr McKeown had some knowledge of the latest proceedings (107). Neither pursuer was asked about it in any detail.
[106]I now have to go back to what I have called Mr Dow's initial letter of 24 January 1994 (No. 20/5 of process). The letter comments on a number of things including the question of whether any burden was created, and the area of the croft and the offer of the north route. Importantly, in paragraph 4 the solicitor focuses on what this whole case has been about, namely the bridge, and (para. 5) the route to the east. Stirling & Gilmour accept that the defender has a general right of access over the Bells' land to her croft but the route granted to her leads over the ford to the north east. This letter seems to me to be important since it sketches in for the first time what is the defence to the sheriff court actions. I have already mentioned that the defender wanted the sheriff's interlocutor to mean that her right was to go over the bridge (944) and here now the agents are disputing this "on the plan" (see Brownlie, 696 on the later letter to the same effect No. 20/7). The defender's view at the proof is confirmed by No. 20/11 of process.
[107]On 27 January 1994 (No. 20/6) Mr McKeown wrote to Mr Dow in response to 20/5. It is plain from that reply that the defender's solicitor considers that the access route does not go over the ford. Mr Dow replied on 15 March (No. 20/7), pointing out that the sheriff had found in favour of a "road" but the title plan showed only a "track". The solicitor thus makes this point, "... Access over the bridge built by our client has not been in use for the prescriptive period and could not form a basis for servitude user. Your client had, at best, privileged use of the bridge ...". Astonishingly, the reply to this (No. 20/8) seems to show complete ignorance of the existence of the bridge, where it was and when it was built. I find this hard to understand when the writer had been to the locus the year before (see McKeown, 85). It makes me wonder whether as late as March 1994 the defender had made it clear to her advisers what she was really claiming. The response was that attitudes hardened, the defender maintained the bridge was where the ford was and the pursuers said they would close the bridge access (Nos. 20/9, 10 and 11).
[108]I can move on now to see what happened after these letters. On 22 July 1994 Mrs Fiddes took decree against the Bells, ordaining them to remove the cattle grid and the gate (see Nos. 20/13 and 14). Mr Brownlie dealt with this at 706. What disappoints me but does not surprise me about this is that no intimation was made either to the Bells or to Stirling and Gilmour of this further step (see McKeown 95/6). It may have been technically correct and no doubt nobody could have prevented what was sought but it is another factor redolent of Mrs Fiddes' attitude to the Bells. No appeal was or could be lodged and soon thereafter the Bells were faced with a summary application (Nos. 20/17 and 20/18) complaining of breach of interdict in respect of two locked gates.
[109]That application was, this time, defended and the procedure followed before the sheriff and on appeal to the sheriff principal is described in Mr Brownlie's evidence from 709 to 727. I accept what he said. The procedural result seems strange to me but now may not matter. Again it is clear to me that there was a serious question as to whether any plan showed the gates complained of. Thereafter (Brownlie 727/30) an attempt was made in the Court of Session to seek judicial review (see Nos. 13/9 to 11). That was unsuccessful apart from a first order interdict. Then in July 1994 the present proceedings began with an interim interdict in favour of the Bells preventing the defender from enforcing her original decree and the two steps which followed it (see Record page 36).
[110]The only remaining historical matter concerning court proceedings is a criminal matter. On 14 December 1993 the defender was convicted of a breach of the peace and a contravention of section 78(1) of the Criminal Justice (Scotland) Act 1980 (see No. 20/19). The incident, which was in May 1993, involved the Bells and their tractor (see 20/19).
[111]I now move to make certain further specific findings on areas which were disputed, not agreed or were in doubt or were conceded. Although they are critical they are fewer in number. It has to be remembered that this is against the background of a remedy of reduction and not strictly a proof on conveyancing. Inevitably, however, what I have to say will affect the conveyancing.
[112]The pursuers' title is based on a map which is a copy of the 1899 Ordnance Survey map. It is not a detailed map. The title purports to reserve a burden in favour of Laggan Estates. The defender's father's title in 1980 depends on the same map and purports to contain a specific servitude which depends on the map. The defender's title plan (No. 13/5) does not show any access over the bridge or by the east road. The interpretation of No. 13/5 is disputed and the map does not prove itself.
[113]I pause to observe that I am critical of this conveyancing. It should have been obvious to the grantors that the map was out of date.
[114]Both maps show a crossing of the burn at a ford which is many metres (24.1) east of the bridge. The conveyancing in 1979 and 1980 did not take account of the existence of the bridge. The bridge over the burn was built by the pursuer and Hugh Currie in 1974 without any grant aid. It is shown, e.g. in No. 17/5 of process. No bridge existed over the burn before that, the crossing being over a plank (seen in 26/3) or via the ford. Notwithstanding the conveyancing maps referred to before which are only tracings and imprecise, there was no road between the crofts before 1983, save a track which was only suitable for pedestrians. The fields to the east of Bells' croft were kept in crops at that time. The precise position of the track has not been proved. Paragraph 1 of the Joint Minute has not brought any colours to the notice of the court. Copies only, in black and white script and line, have been lodged and used. There was no vehicular traffic to the defender's croft possible until 1983 upon the route now claimed by the defender. In 1980 and for many years before, the existing rights of access from the main road to the defender's croft were by vehicle as far as the ford, then on foot. That was the method used by Neil Campbell, William Campbell, the defender and her family. Between 1966 and 1988 the defender, her family and her predecessor in title only visited the croft occasionally and for holidays. After 1974 any vehicular or other access over the bridge was by permission of the pursuer. After 1983 any vehicular or other access over the east road was by similar permission.
[115]The defender has refused reasonable offers of a compromise right of vehicular access to her croft. It is easily possible to drive certain types of country vehicles over the ford and up the side of Bell's fields to the defender's croft. The defender has acted out of spite against the pursuers. She had a criminal conviction for her behaviour towards the pursuers. She put superglue in a lock on the pursuers' gate. She acquiesced in the pursuers' layout of their garden.
[116]The pursuers cannot be blamed for not defending the original sheriff court action. They gave adequate and proper instructions to their solicitors at the time. The failure properly to defend was the fault of Mr Murdanaigum and Mr Sadler. Mr Campbell was not at fault. Stirling and Gilmour well and professionally represented the pursuers when engaged. They could not have prevented decree in the summary application in 1994. That was due to the precipitate actings of Mr McKeown. The pursuers were entitled to appeal, seek judicial review on counsel's advice and to raise the present action. There has been no undue delay in the progress of this action.
[117]The plan which was the basis of the sheriff court action is lost. Its tenor is not proved. It was specially prepared and coloured up for that action. Because the sheriff court plan is lost it is unclear what access route the sheriff found.
[118]The defender has conceded she does not wish or need interdict and ancillary orders in relation to gates and the cattle grid.
[119]I now turn to set out the arguments of parties at the hearing. These were lengthy, complicated and of great assistance to the court. Inevitably some of these have already been dealt with in my analysis of the evidence and findings made. Mr McLean invited me to sustain the pursuers' first, second and third pleas-in-law, leave meanwhile the fourth plea and of consent repel his fifth plea. He asked me to repel all the defender's pleas and grant decree in terms of the first and second conclusions.
[120]He asked me to consider the law relating to reduction of decrees in absence; the evidence which would justify that and finally submissions why the interdicts he sought should be granted.
[121]On decrees in absence he asked me to consider Robertson's Exs v Robertson at pages 29/30 where many failures by lawyers were listed and Black v Alltransport etc. Ltd which showed how to treat any alternative remedy. He read from page 65. If there was a good defence the court would allow it. Finally he took me to Nunn v Nunn at 184 and 185. From these cases he deduced the following proposition. Reduction was discretionary and depended on all the circumstances which need not be exceptional. The court would always be keen to hear a stateable defence but would wish a candid explanation for a failure to defend and any delay in seeking reduction. If an adverse decree resulted from the fault of a solicitor that was not normally the fault of the client; and even if there is a remedy against the solicitor that will not usually outweigh the principle that a stateable defence be heard. Although parties are expected to exhaust other remedies, e.g. an appeal, if they have not done so through no fault of their own they may still get reduction. The practical consequences of a grant or refusal of reduction must be addressed.
[122]Mr McLean then referred me to what was obvious, viz that there was a lot of disagreement on detailed fact. He asked me to prefer the testimony of the pursuers' witnesses to that of the defender's where they differed. In relation to the principal parties he said that Angus Bell did his best to assist the court; had a clear recollection and was credible. His wife was most at ease in court and was a straightforward witness. The solicitors Campbell and Brownlie were both credible, reliable and helpful whereas Sadler was not such a good witness. The pursuers' family (Calloway, Reid, Black and Johnston) did their best to remember from long ago. There were a number of independent witnesses who were quite precise and could be relied on on points of time (Rhind, both Curries, Livingstone and McDougall). They were hardly cross-examined. As to the evidence on commission the commissioner reported that each did their best.
[123]On the other hand some of the defender's witnesses were not credible or reliable. He was very critical of the defender and said that her hobby was to sue the Bells since she believed they had land belonging to her. (By that he meant the application to the Land Court.) That gave her a reason to mislead the court. The clear evidence relating to the superglue, her dog, her conviction and blocking the drains as well as the many ongoing actions revealed her agenda. She had failed to react to reasonable compromises.
[124]Counsel narrated a number of examples where her evidence was unsatisfactory mainly in relation to the bridge, the area at the ford and a number of other details to which I will return in due course.
[125]The witnesses who were her relatives were mainly occasional holiday visitors whose trips would merge with each other. The witnesses Murray and McLeod (on commission) were not reliable and of limited assistance. He referred me to the comments of the commissioner at paragraphs 5 and 7. Janet O'Donnell and Mrs Cuthbert spoke to their mother's script. Both purported to remember things when they were very young. In some respects what they said agreed with the pursuers. William Campbell had to be treated with caution especially about the line of the burn where it crossed the ford. He was wrong when he said there was always a bridge.
[126]Trevor Williams (No. 35 of process) was an ill man when he gave evidence. His memory was not good. Interestingly he said that when he visited the croft he went through water. The affidavit of Fraser (No. 32) was of little value. He could not remember a bridge. Mr McKeown was described by counsel as an enthusiastic litigator. He gave no notice of his application for the interlocutor in July 1994 even though he knew Stirling and Gilmour were acting. He thought he did tell the defender of their letter about shutting the gate but she denied that.
[127]Finally Mr King did his best to assess what he found. Having tried to find where the route shown in 1980 went on the ground he opted for the ford. That meant it was 24 metres to the east of the bridge. The 1980 disposition plan was a trace of the 1899 one.
[128]Counsel then moved to consider the reasons why reduction should be granted. He said that the existence of a good defence was never investigated. That involved trying to discover what the decree meant. Under reference to No. 13/1 and 13/5 he said that the declarator was the 1980 plan where the track was coloured blue. The plan was described as "taxative".
[129]No coloured plan had been produced and that was a difficulty. Nothing further was decided and the question was what did it mean. As it was a servitude the court should take a strict approach to the construction of the deeds and the decree. He referred me to Cusine & Paisley: Servitudes at 15.06 and to Gordon: Land Law (2nd Edn. 1999) page 750 para. 24-58. Where there was a specific grant, as here, (in a taxative plan) that is the route not something else. Where was the coloured plan on which the sheriff proceeded? It was not produced and there had been no proving of the tenor. Was it a sketch or merely a copy of the 1980 disposition plan? This was not a captious point to take since the defender said that the route shown on the 1980 plan, which was the basis of her decree, was over the modern bridge since that was what she wanted. She was not, however, correct. The 1980 disposition plan was a trace of the 1899 Ordnance Survey map of the area. That showed that the route was over a ford and not over any bridge. There was no evidence of a bridge in 1899.
[130]The evidence showed that over time people did go south east over the ford on foot and in cars and there was still a route there for a tractor or a quad bike or on foot, but, doubtfully, for an ordinary car.
[131]Counsel referred me to passages in the evidence of Annie Carmichael, McKerrall (once), Trevor Williams, the defender, Mr King and the first pursuer. The defence to the action was that the route was to the south east. It was also a defence to the declarator that beyond the Bells' house there was a real issue as to whether there was vehicular or pedestrian access. There was also a defence that the granters (Laggan Estates) had no right to make the grant they gave (nemo dat quod non habet) (counsel referred to No. 20/5 of process and No. 20/1 the offer of the north route). It was also a defence that the defender never went over the area where the garden now was and acquiesced in going south east. There were in any case serious arguments against the averments in No. 13/1 before any interdict should be granted.
[132]Accordingly the decree granted begs the very question the parties want answered. The title plan of 1980 equated to the 1899 plan and at face value in the context of the land as it is, showed a route neither party wanted, and so it was necessary to seek to clarify what the sheriff gave.
[133]The next important question was what right did the defender have, and the sole basis was the express grant in the 1980 disposition to her father. The defences plead acquiescence and necessity. The grants to both parties mattered. What was meant by "... all existing rights and ways ..." as at 1979 or 1980. These, whatever they were, could not be granted in 1980 unless they existed (nemo dat etc. and Gordon loc cit 24-54). Looking at the plan 17/2 (1899) (see Joint Minute para. 4), the track comes to the north of the house at the east gable, crosses south west and then turns east. It shows no bridge opposite the house. The black and white photo taken in the 1960s (No. 26/3) shows the same arrangement. It shows a plank leading to the mid line of the house which is the line of the modern bridge. The much later coloured photo (No. 17/5) shows a different arrangement and a change from the 1960s. Such was in accordance with the evidence of Mr King and both pursuers.
[134]Counsel then looked at the evidence on this latter point. He first looked to the point where Neil Campbell died (1966). The witnesses Reid, Black, N. Johnston and Mr Bell all agreed where the plank was and that no vehicles had gone to the defender's croft. Some of this evidence dated back to the 1920s. There was no road to the defender's croft only at best a path through a turnip field. McKerrall agreed that there was no road and no bridge. He had only once attempted vehicular access and confirmed that Neil Campbell had no cart or car. Dr Campbell could remember a time when no car could even reach the Bells' croft. There was no bridge and you could only get to the defender's croft by walking. The impressive witness Woodrow was to the same effect.
[135]The defender was the only person who said there was a bridge at the ford in the 60s. The weight of the other evidence contradicted her.
[136]William Campbell came in 1966 but there was no crofting until 1988. There was no full time occupation. When he came he took a taxi to the ford. Even the defender agreed with that. When William Campbell's uncle had died Rhind had to walk up to secure the croft. Angus McMillan only drove up once there was a road and only crossed any bridge after 1974. The only witnesses who claimed to have gone up to the defender's croft in any vehicle were Annie Carmichael and Trevor Williams but they both went through the ford. The contrary evidence of the witnesses Murray and McLeod should not be accepted.
[137]A change was effected in 1974, because in that year for the first time a bridge was built over the burn in front of the Bells' croft. The black and white photo (26/3) taken in the 60s shows no bridge. There was a question as to whether it was built where the plank was in the photo. Mr Bell and Hugh Currie who helped to build it with nails and concrete said that it was built where the plank was with the existing ford many yards to the east and upstream. The defender said a bridge had always been in the position shown in 17/5 since the 1950s but that would not be correct. Currie's evidence about the bridge and the land in general in 1974 was important. Bell's field to the east of his croft was open, with no road and it was not suitable for a car. The witness McKerrall placed the bridge downstream of the ford. The one time he tried to drive beyond the ford he got stuck. McMillan never drove to the defender's croft.
[138]Once the bridge was built it was used by pedestrians including William Campbell. However in 1974 there was no road between the crofts. Post for the defender's croft was left with the pursuer and at that time there was no road to the east. Counsel referred to the evidence of Mr Bell and Mrs Calloway. The garden to the south was laid out between 1978 when Mrs Bell came and to the north after 1986. A question arose as to whether that had affected the route on the plan.
[139]The relevant titles were in 1979 and 1980 and what was reserved was existing rights then. There was evidence that a pedestrian could still go over the ford and up to the defender's croft without going through the garden. A landrover or quad bike could go by the same way.
[140]Counsel then dealt with the evidence about the road to the east of the pursuer's croft through his field to the defender's boundary.
[141]Counsel said, and went on later to develop, that the evidence showed that the pursuer made his road to the east of the croft in 1983 and around the same time it was extended between the crofts. It was made over a field and prior to that anything taken to the defender's croft was carried up on foot. During William Campbell's summer holidays he and his guests walked up from the burn. No vehicles went up and the post was left at the Bells. There were no significant numbers of visitors and no farming was carried out. In dry weather it might be possible to take a vehicle up before 1983 but not over the route now claimed.
[142]On 3 July 1979 the pursuer got title to his croft (No. 13/4). Clause 2 was the only reservation. The plan could only have been a tracing of the 1899 Ordnance Survey Map. Laggan estates must have had the 1899 Ordnance Survey map which was the most recent one. There was clear evidence that no visit was made to prepare any other conveyancing plan. It would not have shown any bridges and it fitted the photo No. 26/3.
[143]What was reserved was a right to go by vehicle as far as the Bells' croft and then on foot to the defender's croft. The burn was crossed at the ford. It was notable that anyone who said they drove to the defender's croft went through the ford (McKerrall, Carmichael, Williams). In 1979 there was no vehicular access over the bridge and until 1983 none between the crofts as there was no road.
[144]The defender's father got his title on 25 January 1980 but as there was no clear plan, assumptions would have to be made as to where the red and blue lines were.
[145]There was very little evidence about the 1980 Ordnance Survey map No. 17/1. It was unclear whether any surveyor visited the area to draw the map. The only evidence was from Mrs Bell who was unclear who came and when (336). It may indeed show the bridge but it differs from the title plan of Campbell (13/5) which is the 1899 plan.
[146]In 1983 Mr Bell made a road to the east into his fields. That was not done to give access to the defender's croft but to make it easier to look after cattle. Currie helped him to make the road. Thereafter Campbell got a grant to make for the first time a link road. In 1987 the bridge was strengthened. There only ever was one bridge, the one in the coloured photo. The defender described a circle bridge. This was never put to the pursuer and never seen by anyone else. In 1986 the pursuer's property went on fire and was thereafter rebuilt. The evidence and the plans No. 34/1 showed it was on the same site. The importance of that was that the photos could be compared for reference purposes.
[147]In 1988 the defender took over her croft and began some small scale agriculture. Some three or four years later the Bells had the main road resurfaced in tarmacadam and they replaced the old cattle grid. In December 1993 the defender was convicted of breach of the peace and thereafter things deteriorated. In May 1994 the pursuer, on advice, locked the new gates and the defender responded by superglueing the lock. When in 1995 Mr King reported he was looking for the blue route, the plan he used was a trace of the 1899 one and plainly showed the sheriff had granted access over the ford, not the bridge. What he found helped the pursuer and in particular did not support any servitude of necessity. The map was difficult to reconcile with what was on the ground now. A track shown in 1899 was of no relevance to what was observed in 1980 or existed in 1983. Today it was still possible by vehicle or on foot to go through the ford and up to the croft without going through the garden. Even the defender, somewhat reluctantly, agreed on this.
[148]The rights of way reserved to the landlords and passed on in 1979 and 1980 were not the same as purportedly granted by the court in 1993. What the sheriff granted was and only could be the complete route on the 1899 map and that was not what the defender wanted. It was a route for vehicles as far as the Bells' house over the ford and then over the field and moor. In 1980 there was no road any further. Pedestrians could and still can walk up via the ford.
[149]Accordingly the Bells had a good defence which was never investigated or even understood until decree had passed. The crave in the action was inter alia "over a road" but in fact that was not the plan and, to the last, any road post-dated the grant. The defender's legal advisers did not visit the locus before raising the action. The existence of the bridge was a surprise to them. Counsel referred in detail to the evidence of Mr McKeown.
[150]Counsel then moved to consider the reduction in relation to the ancillary orders in No. 13/1 and 2. The Bells had proper defences to the interdicts sought. Here, what the sheriff granted depended upon what the access was. If then the first crave was reduced so should the rest. The sheriff had interdicted the Bells from "occupying" a piece of ground said to be an access. That went too far. The right of any dominant proprietor was not to exclusive occupation of an access route. The servient proprietor could occupy so long as he did not obstruct access (I was referred to Cusine and Paisley loc cit at para. 12.13). To prohibit occupation went too far. Also the interdicts given under craves 3 and 5 were not clear. Interdict had to be clear and precise (I was referred to Walker: Remedies 223 and Murdoch v Murdoch 1973 S.L.T. (Notes) 13). The averments in Article 4 relating to McIntosh concerned the bridge but the sheriff did not give access over the bridge on any view. That was a further good defence to the action. As for craves 6 and 7 it was now conceded that reduction could be granted in respect of these.
[151]Mr McLean then moved to consider the other surrounding circumstances in relation to the decree in absence, any delay and any failure to appear.
[152]He first looked at how the decree came to pass, reviewing the evidence of both pursuers and all the solicitors who gave evidence. The effect of this evidence was that the pursuers had proved their Record. The initial writ (13/1) served in January 1993 was not understood by the pursuers. They got no copy plan and were confused and unfamiliar in the legal world. Mr Bell primarily spoke Gaelic. When they got the writ they sent it to Mr Murdanaigum in Lochgilphead with whom they had previously had dealings. The next thing they heard was that an extract decree (No. 13/2) had been intimated to them (Nos. 23/4 and 23/35). How Mr Sadler got the writ was unclear. In any case he failed to lodge a Notice of Intention to defend. Reponing was tried but failed. However, the Bells knew nothing of it and gave no instructions. Mr Campbell did his best locally (see his Report No. 27/6 and 27/7). Sadler had felt obliged to pay the expenses due to his fault. No appeal of the reponing was lodged. Sadler missed the deadline and gave no advice about it. There were 14 days but by the time the Bells got the decree after 29 April it was too late to appeal. When Mrs Bell got Nos. 23/4 and 23/5 she phoned to get a copy of the plan. She contacted Mr Murdanaigum who said he had passed the case on. In the result the Bells were dealing with solicitors they did not know and had not instructed and had not met. They only met Sadler at the Highland Show in June. He gave them legal aid forms but then took no action. As a result of all this their defence was never heard. He referred to the Record 11E to 12A.
[153]It was also relevant to consider the delay since these events. It was 21/4 years from 1 May 1993 until this action began in July 1995. Since April 1993 efforts had been made to settle matters. Counsel referred to various passages in the evidence of the pursuers, Mr Brownlie and Dr Gray. Laggan Estates had been involved and there was an alternative access proposed. There was a lot of correspondence and a new plan (No. 31/5) but in June 1994 the defender rejected all efforts to settle. Mr Brownlie could not get the sheriff court process and had to go to Campbeltown to see it in 1995. He found there was no coloured plan. The presence of a bridge was a surprise to some of the legal advisers. Matters came to a head in July 1994 when a new interlocutor was sought over the cattle grid. It was something Mrs Fiddes had not got in 1993. The plan showed no cattle grid. There was no intimation and this was important even though the matter was no longer a live issue.
[154]Where the parties were again in dispute about the gates, there was a degree of confusion not helped by the absence of a plan. By then it was realised that the original decree would have to be reduced. Counsel was instructed but he advised a judicial review which failed. The sheriff principal would not sist the ongoing summary application until this action was raised; and it also required an undertaking to be given "on the route found". Then a further offer was made of access over the ford pendente lite. Neither side had been prejudiced in this period and no evidence had been lost. The delay was not the fault of the Bells.
[155]There were also some other important factors to bear in mind.
[156]There were a number of other reasons why matters had been held up. In the first place the pursuers had hoped to resolve matters. Counsel referred me to the evidence of Dr Gray. Secondly there was ongoing confusion about what the sheriff had declared. Thirdly there was a problem about funding. Legal aid was refused at first and then when three years of accounts were prepared was refused on the merits. Only after further representations was it granted in 1996. (Towards the end of the hearing the first pursuer ceased to enjoy legal aid).
[157]The court should grant reduction. The interdicts were perpetual. If reduction were not granted there would be a substantial injustice to the Bells by events beyond their control. If the decree as granted remains everything is unclear and gives the defender an access she does not want. Counsel referred me to the evidence of Mr McKeown at 112. The interlocutors relating to the gates and grids can be reduced, but the perpetual interdict would allow the defender to threaten the Bells. The bridge is not strong enough. Suing Mr Murdanaigum is no use. In any case the defender would suffer no loss of any legitimate right. She still had the right of way on her plan even though it was not what she wanted. Her decree was a windfall. She had conceded her position on the gates and the grid. Accordingly Conclusion 1 should be granted. As to the second conclusion; unless the defender was expressly prohibited she might seek to rely on the reduced interlocutor. She did not trust people and the incidents of superglue, stone throwing and tyre slashing were important. The remedy sought by the pursuers adds and takes away nothing from the defender. She has already tried a summary application. She has an ongoing action against the Bells. With the concession on the gates and the grid, the whole decree was flawed.
[158]Interdict should be granted against extracting the interlocutor of 22 July given the whole history. The summary application was based on a misleading decree involving two or three gates. As the route was based on the 1899 map any locked gate was not on that route and so there could be no contempt. Although the matter was sisted it would be an abuse to allow it to restart and raise questions as to what the decree meant. It would be a licence to bully the pursuers. The whole case was extraordinary. There was vindictive behaviour by the defender and every reason to grant the pursuers their remedy. He referred me to Scott Robinson: Interdict (2nd Edn.) pages 1 and 31. If the defender now did not object to the gate and grid she could not object to the interdict; and if declarator was granted in terms of the first conclusion then there was no need for any summary application.
[159]Having heard Mr Johnston, Mr McLean made the following points in reply.
[160]It could not be argued or even seriously suggested that there was a bridge before 1974; nor that the defender was correct about what she called a "round bridge". So far as the route to the east was concerned the grant from the Crofters Commission in October 1994 (No. 23/8 of process) was to upgrade the road on Campbell's land. There may have been a track to it before but the field it crossed was ploughed and cropped. On the evidence in the critical period there was no such road whatever the plan showed. The Ordnance Survey map enjoyed no special significance. He referred me to Nos. 17/1 and 17/3.
[161]The case was not in any sense about a right of way over the bridge. That always was a collateral matter. There was no scope for declarator of a route other than the one given by the sheriff. The pursuer did not have to show she had no right of way over the bridge; and the right which the sheriff declared is not in part the one the defender now wants. In the sheriff court action she sought only the Disposition plan dated 1980 (No. 13/2 of process). The 1980 plan, which was probably taken from the 1899 plan, shows a route but not one over the bridge.
[162]The whole of King's evidence showed a route over the ford and even though that was close to the bridge, the distance which was 24 metres was significant. What the sheriff did was to grant the "ford" route not the "bridge" route. What he granted and what the plan showed must be construed "stricti juris" and if ambiguous then in a way least burdensome to the "servient tenement". Counsel referred me to Clark v School Board of Perth (1898) 25 R. 919 at 921. There is ample evidence that the ford route existed and was in use in 1980. For example the Architect's Drawings (1983/4) used for the rebuild after the fire (No. 34/1) showed the same sweep of the road. The garden ground was mainly developed to the front when the new house was built and occupied, i.e. after 1987.
[163]It was important to notice that in 1979 the bridge was a simple structure having been built in 1974. It developed over time and was tarmaced much later. The ford route was shown in the 1960 photo (No. 26/3) and there could be no necessary assumption that the draftsman of the 1979 disposition meant to show a route over any such bridge. The plan obviously showed a route over the ford and any other construction was not legitimate. That would be to make a curved line into a straight line.
[164]Taxative had been mentioned but the rules about that did not apply. It could only be used if there was a difference between a plan and a description and one was declared to be taxative. Here there was no description other than the plan which meant that the plan was definitive and what the grantor wished. There was no conflict with any other type of description. What the sheriff did was what the plan showed which was the route over the ford. The ford was stronger than the bridge and less burdensome to the servient tenement. It was up to the pursuer to ask the sheriff what she wanted. Her solicitor had not been to the locus and was unaware of the significance of the bridge. The route had to be precise as there was an interdict. Neither party was present before the sheriff.
[165]So far as acquiescence was concerned, the route was over the ford. The decree did not say that route was varied by acquiescence and if the pursuer wanted a route over the bridge that would need another action. In any case if it had been varied by acquiescence she could go by the less burdensome south east route. What she got in 1980 had not been reserved in 1979 as nothing was defined in No. 13/4. She got more than what was reserved and she could not create a servitude in 1980 "nemo dat quoad non habet". In the sheriff court the whole procedure was summary as nobody conducting the case knew what was on the ground.
[166]If she acquiesced in the garden obstruction to No. 13/5 she had done so before 1993 when she raised her action. In other words she had acquiesced to cancel the very right she wanted declared. In 1993 she wanted the line on No. 13/5 whereas now she wanted the bridge. Hill v McLaren was a case where the superior had abrogated his own contract. Here the pursuer had granted no contract. Miller v Christie showed the narrowing of a route. It was not in point nor was Bain v Smith. Moyes v McDiarmid was of importance for what was said at page 922 by the Lord President. Here the 1980 deed showed a definite particular route which could not be varied at the hand of the defender.
[167]What of a servitude of necessity? Did there have to be an implied grant for pedestrians and vehicles over the bridge? Even if there had to be the sheriff was not asked to declare it. Even if he had, he would have given more than was needed for the comfortable enjoyment of the dominant tenement. Comfortable did not imply luxury standards and enjoyment was not synonymous with pleasant. The proper test was what she had to have to be able to use her property. In this case to be able to take an agricultural vehicle over the ford was enough. It was not necessary to be able to drive up in a bin lorry or an electricity van. Any grant beyond the ford is implied as it was not reserved in 1979. All that Laggan Estates could have granted was "existing rights and ways" but that was not what was done. The grant was a map together with parts, privileges and pertinents; to be the existing rights. No doubt that is why Laggan offered a different route when the problem was realised. Here there was no need for any servitude of necessity and if there was it depended on the subjects. This croft was in the middle of nowhere. It was not akin to Bearsden in Glasgow. "Vehicle" did not mean every and any vehicle in the locus. A four track vehicle or on foot was all that was needed. There was no need for sports cars or lorries.
[168]The servient tenement was not obliged to provide anything for the dominant tenement. Counsel referred me to Gordon: Land Law 2nd Edn. page 756. The defender had to repair and put the servitude in a condition suitable for her. That did not just depend on her personal wishes; for example if she were disabled and wanted a special kind of access. Her wishes were not decisive as the servitude went with the land. Comfortable enjoyment was an objective test not what this defender wanted. Some rights can only be pedestrian, e.g. to a flat. This defender on the evidence walked to her croft and pedestrian access is all she needs. Any implied right is enough which goes over the ford. Counsel referred me to the affidavit of Duncan Fraser. Bowers was a different kind of case where, unlike here, the knackery was completely surrounded and further this is not a case when only the bridge will do. It is perfectly possible to go over the ford for access and so there is no need to imply another access. Even if there was, anything implied would have to be by pre-existing routes. A suitable alternative had been offered by the pursuer (237) and rejected. The north route offered by Laggan was also refused as the defender did not consider it to be a good enough standard. The defender could and did get to her croft. She was not entitled to a highway to get there. When the titles were given, her croft was only a holiday home. Since then her demands had changed.
[169]So far as equity was concerned Mrs Bell had not caused any trouble. That only arose when the defender came to the croft in the late 1980s. It was said that the defence had been fully discussed in the reponing note. However, nobody present had been to the locus or understood what was happening. The defence was not understood. The Bells did not know they could appeal or what the sheriff had done over the breach of interdict. The apparent loss of the plan has in part been superseded by the concession on gates and the grid. Perpetual interdict would cause no prejudice and give a degree of certainty. Only at the hearing did the defender say she was going to take no steps to enforce the summary decree. However, no undertaking had been given and the action was not abandoned.
[170]What Mr Johnston said in his submissions was this. Reduction should be refused except what was conceded. His argument would fall into several chapters. There were certain legal principles. It would be necessary to consider the evidence about the crossing point over the burn; the garden effect on that route; the use of the track to the east of the Bells' croft before 1983 and the fact that there was no suitable alternative to the east of the bridge. He would also have observations on reduction and the remedies sought.
[171]It was important to remember that these two crofts were in the same ownership until 1979 and the same seller sold both. The defender could have no rights by positive prescription because she had not enjoyed for 20 years. (That had prompted the amendment to the defender's third plea-in-law. In 1979 all the land was in the same ownership. For the same reasons she could not have lost any rights by non use; and because prescription did not arise, what usage was needed left the authorities of little help. Evidence before 1979 was only relevant for what were "...existing rights and ways..." and whether these had changed.
[172]The first matter to look at, said counsel, was the 1979 disposition. On the evidence there was an existing way to the defender's croft and it was over the bridge. The reservation clause in No. 13/14 of process was important. What was said was "... all existing rights and ways ..." (counsel's emphasis). At the time the route being used was over the bridge. That was the way people went. It did not have to be the only way. Accordingly within the disposition was reserved a real right to the successors to the seller. It followed from that, that quite apart from the plan in 1980 the defender could go over the bridge because of the right reserved to the Trustees. Such rights are not defined on a plan but by what was in existence for the benefit of successors. The plan is not taxative except for the buildings.
[173]The next matter was the 1980 disposition (No. 13/5). The plan is referred to twice and is the route found by the sheriff. The Trustees could only grant what they reserve (nemo dat quoad non habet). The taxative plan was unclear and the servitude line could vary. This plan is not detailed and is only a tracing. The best evidence about it was from Mr King but even that was inconclusive, i.e. nearer the ford than the bridge. The ford was more likely but it could be neither one nor the other. (Counsel referred to No. 23/7 para. 7.) The map shows a route nobody wants, therefore the taxative plan is of less value. It should be interpreted as the route in fact enjoyed at the time. The grant is presumed to be valid. That is what the conveyancer intended. There are few features on the plan.
[174]The parts, privileges and pertinents are included. These presume that the grant should not be made void. The court should find a route for vehicles which could be used. If not one would have to be implied. If not, the consequences are absurd, as there is no other "suitable" route. It would mean that only owners or visitors with tractors could come and that affected the reasonable enjoyment of the property. The "right" would not square with the dispositions if it was only for tractors. The defender wanted the electricity van to get up over the bridge.
[175]The plan was unhelpful, though it was what the draftsman intended. He referred to the evidence of Mr King at para. 15. The bridge was there in 1979 so the plan could have been more clearly annotated with both routes. The two dispositions used the same plan and only one way is shown to the pursuer's croft. The natural inference is that it must be by way of the bridge. If the taxative plan was unequivocable then it rules, but it is not. It does not show a route that existed then or now. The fact that the route on the ground is not the same as the plan does not mean she cannot go over the bridge. If the plan goes to south west then the defender can insist on this unless she has agreed a variation. She let them build the garden and can't now make them dig it up. Between 1978 and 1986 the garden obstructed the path from the ford. The second pursuer did not think she was obstructing as the defender was using the bridge. Her acquiescence in the garden was not so as she could go to the south east.
[176]Mr Johnston then referred me to some authorities, beginning with Hill v McLaren at page 1366. He next noted Millar v Christie pointing out that here the acquiescence was only for the garden and not loss of the whole right. That did not prevent her using the bridge. In Millar I was referred to various passages at pages 6, 9 and 11. Next was Moyes v McDiarmid where singular successors were involved. The question was whether the servient tenement could alter a minute description. Counsel noted passages at 919, 922 and 924. There was more scope for variation in rural servitudes than in towns (see 924). Bain v Smith involved an alteration of a material and extensive nature. In the present case the alteration was not drastic. On King's evidence it was a few metres; and this was in open country not in a town. The new garden prevented the south west line being used and the defender could only insist on reinstatement unless she agreed. On the evidence she did not and went over the bridge until 1994 when for the first time the pursuers tried to stop her by locking the gates; but by then the old route had been long obliterated.
[177]No damage would be done to the faith of the Registers by the defender following a different route. Variation could be by agreement or by court decree and so if the 1980 disposition showed a line not over the bridge the servient tenement (Bells) had varied it and the dominant tenement (Fiddes) had consented. Acquiescence did not need writing and the defender acquiesced by going over the bridge. She was personally barred from seeking reinstatement of the garden; and the pursuers were barred from insisting on her using the old route which they had blocked. The pursuers could not have it both ways. They could not approbate and reprobate. Once the bridge was there the defender used it, but usage by anyone before 1970 showed what the way was, i.e. what were the "existing rights and ways". The court had to take account of all usage. It was only a variation on the line which needed no court declaration. It was a kind of esto case to the interpretation of words.
[178]Counsel then referred me to the meaning of "taxative" in certain text books. Normally it meant that the plan prevailed over any inconsistent matters; but here the plan produced a bizarre result, thus the court had to find what was intended.
[179]Mr Johnston next asked me to look at the case from the point of view of an implied servitude. He said that if the defender did not have a right of access over the bridge and the track to the east on the 1979 and 1980 deeds, then she had an implied right of way. He referred me in detail to Bowers v Kennedy at various passages on pages 560, 562 and 563. If the pursuers have reorganised their croft so that the old route is not suitable then they must make access by a different route and the defender must accept any other suitable route. He referred me to passages in Ewart v Cochrane at 122/3 and 124 - a case written in the language of servitudes.
[180]What of the facts here? The route over the ford to the south east was not suitable. It was neither convenient nor comfortable. It was only of use for tractors and landrovers not cars. The word in the conveyancing was "vehicular". The fact that there was a grant in the deed does not mean that implication is out as the grant had been obstructed by the pursuers making it impassable. The court should therefore find that there was no defence on the merits in the sheriff courts.
[181]Under reference to his written submissions, counsel then looked at the evidence. He first dealt with the crossing point. On any view the old crossing was close to where the bridge now is. According to Mr King it was between the ford and the bridge. The true question was what was the route. Once the bridge was built and used it became the existing "right of way". The first pursuer had acquiesced in the new route and Mrs Bell said nobody went over the ford except her husband and son for agricultural purposes. Mrs Calloway's evidence was to the same effect.
[182]It was clear on the evidence that the old track ran through what was the garden. That meant that the garden lay over the south east route.
[183]Next it was important to consider the track to the east of the Bells' croft before 1983 and here there was a sharp issue of credibility. Both sides had led evidence of family and friends. It was thus important to look for independent evidence such as Woodrow, McMillan and King. Firstly, there was no evidence of the use of any path south eastwards from the ford in 1979. People went along the gable end track. Mr King found no trace of any other track. Mr Bell did mention a path but a random walk through the fields, depending for its route on what was in them, was not an existing right of way and was in any case no use for vehicles.
[184]The evidence was contradictory as to what there was from the east gable before 1979. A route was shown on the map and it could not be said that the Ordnance Survey had not properly done their work. Indeed the 1980 map had altered the route to remove the U shape. The two maps were different and the track to the west had gone. The scales were different and it was clear that the Ordnance Survey had changed the maps. Accordingly it showed a track in 1980 which the pursuer said only came in 1983. Between the pursuers and defender there was a conflict. The map was independent and showed the word "track". Thus the weight of the evidence favoured the defender as to an existing way in 1979. Counsel then went to the evidence in detail about what vehicles went to the defender's croft and when. Evidence long before 1979 was not particularly helpful. There was mention of use by a horse and cart. A grant was given to upgrade (see No. 23/8 of process). It was a road though not magnificent and it was there before 1983. Cars did go over it unless the driver did not want to risk it. The independent evidence especially of Woodrow, McMillan and King supported this view. The court should prefer the view that there was traffic vehicular and pedestrian in 1979 and before and that was backed up by independent evidence. There was too much evidence against the view that there was no track to the east before 1983. The 1980 Map marked it as a track three years before the pursuer said he made it on his own land. It was there and reserved to the Trustees in 1979 after which it was an improved track. All the maps can't be wrong and nobody has challenged the maps.
Separately and further, said counsel, there was now no suitable other route to the defender's croft than the one found by the sheriff. There is only one route taken and only tractors and landrovers can use the ford. That showed it was not a suitable route. The grant to be interpreted was "pedestrian and vehicular" (not "tractors") therefore it must be suitable for cars. Counsel referred to the Lord President in Bowers to the effect that a route was not suitable if it was only usable by a narrow class of vehicle. Through the ford was not even a suitable access for pedestrians. The conclusion from all of this was that there never was a defence to the sheriff court actions which sought a route according to the map. There was no good evidence that the bridge was unsuitable and the defender had no intention to bring in heavy traffic.
[185]Mr Johnston next addressed the question of reduction which he said was an equitable remedy. Assuming that the court had to consider it the proper question was whether it should be granted. What then were the equities. In the first place there was a reponing where the defence of "other route" was advanced to the sheriff and after a hearing rejected. There was no appeal and that was unexplained.
[186]Reponing was not the only point since the pursuers ignored the decree causing the defender to raise proceedings for breach of interdict. Also in this action the pursuers had led no evidence from their former solicitors as to why the action was not defended (except Sadler who was at fault for not lodging the Notice of Intention to Defend), Murdanaigum and Beatson should have been called.
[187]It was important to note what was being said about the plan in the interlocutor. There was no dispute about the cattle grid or the gates. For the first time and in this action the pursuers say that they got no plan with the interlocutor which was served on them. He referred to the evidence of Mr McKeown about service and correspondence in April 1993. Nothing was said in the reponing note about the lack of a plan. There was a presumption that the proceedings in the sheriff court were regular (Omma Praesumunter rite et solemniter acta). The evidence fitted the presumption. Further, on the evidence, the plan was borrowed to begin the Summary Application. In any case the plan before the sheriff was a copy of the Disposition plan marked up and coloured, and so even if there was a defence these factors had to be considered.
[188]Turning now to the Record, Mr Johnston said the defender was not now insisting in the gates and the cattle grid and so paragraphs 6 and 7 of the interlocutor of 4 February 1993 could be reduced of consent pro tanto; and to that extent only the first plea-in-law for the pursuer could be sustained. However, in No. 13/2 of process, paragraphs 2, 3 4 and 5 are quite clear and should not be reduced. (Obviously if the whole decree was reduced there would be no need for any interdict. The decree would be void.) But as the decree remains so should interdict on paragraphs 1/5/ What is not reduced leaves the right valid and what is reduced is now void and pro non scripto.
[189]That left the Second Conclusion Roman ii and iii. The defender had no interest in the cattle grid or gates nor any desire to enforce a breach of interdict ten years ago. The matter could be dealt with by an interdict, an undertaking or by abandoning the summary application, he conceded.
[190]He ended by inviting me to sustain the defender's pleas 2 and 6 inclusive subject to the one matter conceded and to repel all the pursuers' pleas subject to concession just noted.
[191]Let me now return to look at the cases relied on. In Robertson's Executors v Robertson an action had been raised to which no defences were lodged. Decree in absence was taken and an attempt to repone late was refused, as was a reclaiming motion against that refusal for want of leave. The defender then sought to reduce the decree and the action was dismissed. In the Inner House however proof before answer was allowed. It was held there was no obligation to establish "exceptional circumstances" but that the whole circumstances had to be looked at including any failure to use other remedies, delays and any circumstances special to each case; and on a case by case basis. A number of authorities were reviewed by Lord McCluskey.
[192]In J. & C. Black (Haulage) Ltd v Alltransport International Group Ltd Lord Allanbridge considered reduction in the context of a decree by default. A decree for payment had been taken after tabling of the action had been missed and no defences had been lodged. The decree was extracted before the pursuers became aware of it. It appeared to the Lord Ordinary (page 62) that there was a substantial defence (breach of contract) which had never been heard. He allowed proof before answer which would have to decide the point as to whether they were aware decree had passed. Again a number of authorities were reviewed from which it was clear that strength of the defence is an important factor in exercising discretion to allow reduction.
[193]In Nunn v Nunn a husband sought to reduce a decree of divorce and financial provision pronounced against him. The decree had been taken in absence. Applying Robertson's Executors the Lord Ordinary held that there were no proper averments as to why he had not opposed the action in the first place and no proper defence was stated to the financial part of the case. (see page 185A and I). What was averred was described as vague and equivocal. The action was dismissed.
[194]Bowers v Kennedy was a case concerning rights of access to landlocked subjects over the neighbouring and surrounding property. The surrounding property was a farm in Angus which had been variously sold on since 1945. The landlocked subjects were buildings known as Wynton Knackery which had not been occupied for some 26 years. The earlier conveyancing had reserved a right of access to the Knackery by the roads through the farm. The pursuers had shut off by a fence and other means, access from the public road to the Knackery. The defender who owned the Knackery asked for access to be reinstated. The pursuers sought interdict, the defenders declarator.
[195]There are clearly a number of distinctions between these facts and those in the present case which are obvious and important.
[196]Inter alia in Bowers there were arguments over prescription and abandonment of a right of access and it was observed that an owner could not abandon his rights of access in a way that would affect his singular successor unless by the clearest words or by unmistakable implication. The court (para. 16 and 17) pointed out that a right of access cannot be lost merely because it is described in the conveyancing as being exerciseable as a servitude (the word "servitude" was not actually used). At page 564 (para. 25) the Lord President added this:
"... the defender should be able to get to the Knackery from the public road. The precise route is a secondary matter. In the particular circumstances of this case, where the pursuers appear to have reorganised the use of their land over a long period, it may be more convenient for them to make the access available by some route other than the access road mentioned in the 1945 disposition. It appears to us that the defender could not properly insist on being given access by the old route and would have to accept any other suitable route offered by the pursuers..." (He concluded (letter H) by encouraging the parties to settle.)
[197]Moyes v McDiarmid concerned an urban servitude involving property in Perth. Deeds created a servitude right of access by a specified footpath route (the blue route (919)) over the disponer's property to the ground of two disponees. A singular successor sought to petition the Dean of Guild to alter this access route by building on it and substituting an alternative access (the yellow route) some 40 feet further to the south. The court refused to allow the alteration. At 922/3 the Lord President said this:
"... It appears to me, however, that indefinite rural servitudes of way, or even rural servitudes of way which have become definite by use and not by contract, are, for the purposes of the present question, altogether different from such an access to urban property as that to which the present case relates. The essence of a servitude of way to a farm, a mill, a peat moss or the like, is that the owner of the dominant tenement shall get convenient access to these places; the precise route is, or may probably be, immaterial, if it be reasonably convenient, and it is therefore intelligible that when the country began to be fenced and enclosed, on the introduction of modern methods of cultivation, the Court should, in exercise of its inherent power to regulate rural praedial servitudes, have allowed undefined rights of way to be made definite by being confined to a particular track, or even, where they had been defined by use, have permitted them to be cast about, so as to substitute for them another track equally convenient.
It appears to me, however, to be a very different question whether such a power of alteration exists, or should be exercised, in the case of an urban servitude of way, where the course of that way has been minutely defined by contract contained in the titles ..."
[198]Hill v McLaren concerned an urban servitude of access in Dundee. The superior in the feu contract plan had granted a right of passage along a route some five feet wide through one of the houses (it was marked blue). Some years later he closed and locked this passage and offered the feuars a nearby passage which though longer in distance was found to be more commodious, safer and better lit. The feuars contended for the original route.
[199]The court unanimously agreed with them. The specific route had been fixed by contract. It was on a specific line and could not be altered by the superior to suit himself. The specific passage had been in use for some years.
[200]It is of some importance to note that this case did have other features. It was by no means certain according to Lord Ormidale that the complaining feuar would have the benefit of the offered substitute route by title or otherwise. There were other parties involved. Also the Lord President (1367) did not consider on the facts that the substitute route was as convenient as the one closed off.
[201]Bain v Smith and Morrison concerned alterations made to a servitude foot road leading from a property to the town of Stirling. There had been proceedings in 1839 concerning the route (called the yellow line) and obstructions put on it then. The matter had settled with a declarator of the yellow line. Bain and his family then enjoyed uninterrupted use of the route until about 1870. At that time Smith (who was a feuar) acquired a field through which the road passed. Without telling Bain he built an iron fence across the road, preventing its use. The superior (Morrison) agreeing with the action of his feuar offered the complainer an alternative road (the pink and blue route) which had no foot road separate from the carriageway. That was not as convenient for the complainer as the servitude road. The Lord Ordinary interdicted the obstruction but without prejudice to the superior's right to establish a right to shut up the road if an equally safe and convenient substitute footpath was provided.
[202]It is clear from the Opinions in the Inner House, agreeing with the Lord Ordinary, that the rights of the dominant and servient tenement have to be reconciled so as neither to impair the servitude of the dominant tenement, nor to injure the servient tenement unnecessarily. Here what was done was to block a pavement and substitute a carriageway which vehicles would use. The court also agreed the superior's right to establish by competent process a suitable and safe alternative access.
[203]Millar v Christie was a case concerning an urban servitude of access in Roslin, Midlothian, over a cart road some 15 feet wide which appeared to pass round external walls of the defender's cottage and garage. The garage which was built in 1950 had narrowed the cart road to just under 6 feet and later the defender padlocked a gate to prevent any access behind his house and across his backyard. The titles had not expressly limited the width of the cart road or track. Historically its use was to empty the ashpits from the houses without having to carry ash through the dwelling houses. The defender argued that by allowing the garage to be built the pursuers had acquiesced in having their right of access extinguished. The First Division unanimously found that the right of access had not been extinguished by any consent to reduction in the width of the track.
[204]At page 9 Lord Sorn said this:
"... If the right conferred on the dominant tenement was the right to take carts and nothing else but carts, the argument might be well enough; but the grant in the present case appears to me to include more than that. The right conferred is a right of access by means of a cart road, and this does not limit the mode of access to access by carts. Although a cart, or a standard motor car, may not be able to get through the passage as it now exists, there are other vehicles, such as a motor bicycle, which could get through. Access by foot is also still available. When there is encroachment on a servitude right, and the encroachment is acquiesced in, it must always be a question of circumstances and degree whether the acquiescence signifies a giving up of the right in toto or only a giving up of the right pro tanto.
[205]Clark v School Board of Perth concerned an urban servitude against building. The report of the case is not easy to follow but involved the geometry of building within the segment of a circle below the end of a wall and outwith the probable intended area of the prohibition. The Second Division, agreeing with the Dean of Guild, were of the opinion that where two meanings can be placed on the construction of a clause imposing a servitude, that meaning is to be given effect to which is most favourable to the servient tenement.
[206]Ewart v Cochrane concerned a servitude of a drain or conduit for water which ran from a tanyard works into a tank on neighbouring premises. The defender (Ewart) had obstructed it by a wall. The whole area had been (twice) in common ownership and the drain was made when in this status. There was no grant of any express stipulation or servitude when the property was divided and the claim sought to be established was by user and implication from that user. It was enjoyment for convenient use at the actual time of the grant and not any natural right of ownership (see 122). Although couched in the language of English law, the words of the Lord Chancellor are important. At 123 he said this:
"... the grant was of this tanyard 'and that as the whole said subjects are presently possessed by us' and so on, 'with the pertinents hereby disponed and inclosed as aforesaid in all time coming'. Then as the subjects of the grant were then possessed, the tanyard along with this gutter to the hole was so enjoyed, and it was necessary for the reasonable enjoyment of the property. When I say it was necessary, I do not mean that it was so essentially necessary that the property could have no value whatever without this easement, but I mean that it was necessary for the convenient and comfortable enjoyment of the property as it existed before the time of the grant. That being so it seems to me that this easement passed by the conveyance ...".
[207]Finally there is Murdoch v Murdoch which was referred to only to point out that interdict is an equitable remedy and must be precise and go no further than is necessary to protect an anticipated violation of a legal right.
[208]What then must I take from these cases. It must be borne in mind that there is a presumption in favour of the freedom of the servient tenement (here the Bells), and accordingly every deed purporting to create a servitude has to be strictly construed (Cusine & Paisley loc. cit. 15.06). The cases referred to concerning urban servitudes show that strict construction against a background of alternatives offered or obstructions made, e.g. Hill and Bain. Millar was a case where although an access was narrowed, a particular type of vehicle could still pass. The same could be said in the present case where there has never been any suggestion by the pursuer that the defender could not, for example, take a landrover to her croft provided the route was by the ford and not over the bridge and up the east road. That, of course, assumes she has a clear right of access (as was the case in Millar) by vehicle, and on that point I express my opinion herein elsewhere. Ewart is a case with some similarities to the present because common ownership (twice) of both tenements was seen. However, it differs as there was no express grant and it was sought to be proved by use and implication. Use or user is of course a factor in the case before me but against a deed and a plan. Moyes is an important case for what was said (supra). There the difference between urban and rural is seen, and a precise route may not matter provided there is convenient access. It is plain that considerable leeway must exist in rural areas. In this case the area is wide and vast (see e.g. the photos in 23/1, Appendix 7) and as the evidence showed, the defender could easily get to her croft without going near the pursuer. Indeed she refused an offer of such a route.
[209]Bowers in my view is not a case in point. It did not concern servitudes but rather a landowner who had no way into his property and the case was decided upon other principles.
[210]The cases on reduction tell me two things. In the first place procedural rules ought not in general to overrule substantive law. That is common sense. Secondly, while the remedy of reduction must be carefully applied; the court should be reluctant to allow a decree to stand where there is a substantial defence which has never been heard, without investigating that defence and however that set of circumstances has arisen. Some of the cases were decided after proof, others not. The cases cited to me were all special on their own facts.
[211]Against the findings I now move to consider the remaining arguments and the proper disposal of this action.
[212]I am satisfied that on the facts of this case the pursuers have always had not only a defence to the action but a compelling one. I do not need to rehearse the evidence again save to observe that if anyone had gone to the locus before the conveyancing and looked, some of these problems would not have occurred.
[213]The facts apart there is a real issue of whether any proper servitude was created. This is seen in the letter No. 20/5. What the Trustees reserved in Bells' title was "all existing rights and ways". There was no reference to any map. These are very vague and unspecific words to create a real burden or a servitude. However, within a year the generality had become vehicular access and related to a map. I think, evidence apart, there is a real question of whether these words gave any grant (nemo dat quod non habet). Mr Bell would not of course know in 1980 that this had been done against his interests.
[214]In a question of reduction I do not need to decide this point and I would have liked to have heard evidence from the Trustees of Laggan Estates before reaching a concluded view.
[215]To continue, I have found on the evidence that there never was any vehicular right of access to the croft along the line on the deed plan. The defender has all along claimed her right goes over the bridge and then by the east road. That is not what the title plan shows and counsel for the defender described it as "only a tracing". Her claim in any case is, I think, misconceived. With servitudes the servient tenement is only obliged to submit to the servitude created so far as it is necessary for the enjoyment of the dominant tenement. It is never a question of the wishes of any individual proprietor for the time being as to what they think is convenient. It was said in argument that in a very rural area like this Mrs Fiddes is not entitled to a motorway to her property. Allowing for Mr McLean's deliberate exaggeration, it well illustrates the point. As counsel said, she is not prevented from a vehicular access by a suitable vehicle but only over the ford and thereafter to the south east.
[216]The point has to be made yet again that without the sheriff court plan her whole claim is unclear and it is impossible to know with the certainty needed for a proper servitude what the decree means. Nobody can therefore know what the sheriff granted but I know that the title plan is what neither party wants. In my view it would be quite wrong to interpret the title plan as what was enjoyed at the time, as that may not have been the sheriff court plan.
[217]There is now no issue of prescription and moving away from the title plan itself the next question is whether the pursuers have acquiesced in the defender's use of the access over the bridge and up the east road. The pursuers were unaware of the defender's alleged "right" and so I do not see how they could acquiesce in ignorance to create any right. The defender cannot claim her right depends on her title and at the same time claim it depends on acquiescence without raising yet another action. In any case, any alleged acquiescence can only be valid for the bridge from 1974 and the east road from 1983. Her presence at her croft at these times was, at best for her, occasional. I hold that she never had any right of access, vehicular or pedestrian, over the bridge or by the east road. If she or anyone else went on this route it was by permission of the pursuers.
[218]A separate point was made in relation to acquiescence over the creation of Mrs Bell's garden to the north. That admittedly now covered the title plan just after it crosses the ford. No issue was made of this and Mr Johnston accepted that his client could not now ask for the garden to be removed.
[219]It was said, however, that the pursuers could not block the route on the map, let her agree and then prevent her using the bridge. I do not agree because it begs the whole question of what right of access was firstly conveyed (if any) and secondly what the sheriff granted (unclear).
[220]I do not accept the defender's argument on implied servitude. That means all maps have to be discarded and rather ignores that I am dealing here with reduction. It is not the case, as many witnesses confirmed, that the defender could not go to her croft in a suitable land vehicle. That may not be what she wants but that is hardly to the point. That and other evidence is in my view destructive of the case of Bowers where one party was truly landlocked. That cannot be said of this case and indeed the Bells had no wish to prevent her taking a vehicle to her croft over the ford as her title plan shows and then up by the fields. There is absolutely no reason to think this would not provide comfortable enjoyment of her croft. I have already rejected Bowers as being not in point on the facts here.
[221]Convenient and comfortable enjoyment leads me back to Ewart when a conveyance was read in a way to give an implied right. In the present case to do so would mean redrawing the map and that I think is unsatisfactory. It would create lack of certainty in the Register of Titles and for singular successors. It would also require a very strained construction to the meaning of "comfortable and convenient" enjoyment of a croft in an isolated area. The pipe through the wall in Ewart was on a fixed line. The defender's access need not be so precise.
[222]I find in law and repeat that there has been a valid defence proved on the balance of probability.
[223]The next question is whether I ought to grant reduction. I refer to my analysis of the events and correspondence. That has to be judged against all the facts and the defence I have found proved. It is correctly described as a matter of equity.
[224]In fact I consider the pursuers have proved what they aver in Articles 4, 6, 7, 8 and 9. The early faults were entirely due to the two solicitors I have referred to. The Bells never saw the sheriff court plan, nor did Mr Brownlie who went to look for it. Even in 1994 there was confusion about the bridge, all at a time when I have held there was a reasonable offer of a vehicular route from the north at no expense to the defender. In my view the pursuers were entitled to hope that the matter could be compromised in this way.
[225]Thereafter I think that the further sheriff court appeal and the hearing before Lord Marnoch were justified. Counsel said that no evidence was lost. In view of the large number of witnesses and the prompt action to seek a commission for the elderly and sick, I agree. In my view all of these events, apart possibly from a delay over legal aid, were beyond the control of the pursuers. I attach no blame to them. On the other hand the defender had behaved badly; and in my opinion capriciously in refusing to settle. Her own sheriff court process is missing a vital plan. Very late on and only when pressed she conceded there was no live issue on the gates and the cattle grid. Over the latter she had rushed to take decree in 1994. Right to the very end no undertaking was forthcoming and the summary application has not been abandoned.
[226]All of these factors compel me to the view that a grave injustice would be done to the Bells if I refused to allow reduction and I will grant it. That means the first conclusion will be sustained. Since I consider the sheriff court decree to be seriously flawed, I will sustain the second conclusion. In view of the history of this case it is doubly necessary that the interdict already granted be made perpetual. That has effect on the main action and the summary application where, as noted, everything has been conceded.
[227]In the result, I sustain the pursuers' pleas 1, 2 and 3. As asked I make no order on plea 4 and repel the fifth plea. I will repel all the defender's pleas (as amended).
[228]I should add this as a postscript. Counsel on both sides gave me every assistance at all times. I am indebted to both. The legal aid fund will have to pay for a substantial part of this case. I hope that there will be no further litigation about this issue as that would not be in the public interest.