Elizabeth Mary Rose against Richard Huw Baston and others (Court of Session) [2024] CSOH 104 (19 November 2024)

Elizabeth Mary Rose against Richard Huw Baston and others (Court of Session) [2024] CSOH 104 (19 November 2024)

The pursuer's averments are sufficiently relevant and specific to justify proof before answer, as resolution of boundary location, register inaccuracy, and trespass/harassment claims depends on factual evidence. The defenders' motion to dismiss is refused.

Citation
[2024] CSOH 104
Parties
Pursuer: Elizabeth Mary Rose; First Defender: Richard Huw Baston; Second Defender: Shona MacGregor Baston; Third Defender: The Keeper of the Registers of Scotland; Fourth Defender: Russell McKeand; Fifth Defender: Jennifer Hamilton
Jurisdiction
Scotland
Judgment Date
19 November 2024
Procedural Posture
Civil Boundary Dispute / Procedure Roll; Motion to Dismiss; Interlocutory Decision
Outcome
Defenders' motion to dismiss refused; proof before answer allowed.
Legal Topics
Boundary Disputes, Rectification of Land Register, Trespass, Harassment, Prescription
Property Law Land Registration Civil Procedure Boundary Disputes Rectification of Land Register Trespass Harassment Prescription

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Parties

Elizabeth Mary Rose

Pursuer

Richard Huw Baston

First Defender

Shona MacGregor Baston

Second Defender

The Keeper of the Registers of Scotland

Third Defender

Russell McKeand

Fourth Defender

Jennifer Hamilton

Fifth Defender

Procedural Posture

Civil Boundary Dispute / Procedure Roll; Motion to Dismiss; Interlocutory Decision

Legal Issues

  1. 1 Whether the pursuer's averments justify proof before answer regarding boundary location and register rectification
  2. 2 Whether the pursuer has relevantly averred trespass and harassment claims
  3. 3 Whether the cadastral map and title sheet are manifestly inaccurate under the Land Registration (Scotland) Act 2012

Ratio Decidendi

The pursuer's averments are sufficiently relevant and specific to justify proof before answer, as resolution of boundary location, register inaccuracy, and trespass/harassment claims depends on factual evidence. The defenders' motion to dismiss is refused.

Court Disposition

Defenders' motion to dismiss refused; proof before answer allowed.

Orders

  • Proof before answer granted with all averments and pleas-in-law left standing.
  • Pursuer entitled to expenses occasioned by the procedure roll.