Rivendale v Lands Tribunal for Scotland [2015] ScotCS CSIH_27 (16 April 2015)

Rivendale v Lands Tribunal for Scotland [2015] ScotCS CSIH_27 (16 April 2015)

The dispositive clause and plan in the 1960 disposition must be read together; the plan delineates the boundaries and excludes the solum of the track. The appellant's title is not habile to include the track, and positive prescription cannot be founded on it. The respondent demonstrated sufficient possession of the disputed area, including acts by contractors, and would suffer prejudice from rectification. The appeal is refused.

Citation
[2015] ScotCS CSIH_27
Parties
Appellant: Rose Rivendale; Respondent: Lynne Elizabeth Clark
Jurisdiction
Scotland
Judgment Date
16 April 2015
Procedural Posture
Appeal Under Section 11 of the Tribunals and Inquiries Act 1992 / Judgment on Appeal
Outcome
appeal refused
Legal Topics
Rectification of Title, Positive Prescription, Boundary Disputes, Proprietor in Possession, Prejudice Under Rectification
Property Law Land Registration Rectification of Title Positive Prescription Boundary Disputes Proprietor in Possession Prejudice Under Rectification

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Parties

Rose Rivendale

Appellant

Lynne Elizabeth Clark

Respondent

Procedural Posture

Appeal Under Section 11 of the Tribunals and Inquiries Act 1992 / Judgment on Appeal

Legal Issues

  1. 1 Whether appellant's title included the solum of the track ex adverso of South Cottage
  2. 2 Whether appellant's title was habile to found title by positive prescription
  3. 3 Whether respondent was a proprietor in possession for purposes of section 9(3) of the Land Registration (Scotland) Act 1979

Ratio Decidendi

The dispositive clause and plan in the 1960 disposition must be read together; the plan delineates the boundaries and excludes the solum of the track. The appellant's title is not habile to include the track, and positive prescription cannot be founded on it. The respondent demonstrated sufficient possession of the disputed area, including acts by contractors, and would suffer prejudice from rectification. The appeal is refused.

Court Disposition

appeal refused

Orders

  • Appeal refused; Lands Tribunal's decision affirmed