Outer House case concerning the title to land near Tullochgribban Quarry (situated close to Grantown-on-Spey). The Trustees sought declarator that they owned the disputed land. They argued that a disposition in 1991 in their favour formed a habile title which had been fortified by prescription. As such, they contended that a 2008 disposition in favour of G Hamilton (Tullochgribban Mains) Limited (the quarry owners) was a competing title and should be reduced. The question for the court was whether the Trustees title was habile and therefore capable of founding the prescriptive possession claimed by the Trustees.
What is a habile title?
After some strongly worded comments about the quality of the pleadings, Lady Clark considered what was necessary to constitute a habile title drawing in particular from Auld v Hay (1880) in which the Lord Justice Clerk stated:
“A habile title does not mean a charter followed by sasine, which bears to convey the property in dispute, but one which is conceived in terms capable of being so construed. The terms of the grant may be ambiguous, or indefinite, or general, so that it may remain doubtful whether the particular subject is or is not conveyed, or, if conveyed, what is the extent of it. But, if the instrument be conceived in terms consistent with and susceptible of a construction which would embrace such a conveyance, that is enough, and 40 years[1] possession following on it will constitute the right to the extent possessed.”
And Lord Deas said:
“It is not necessary, in my opinion, that a party who pleads prescription should produce a title which ex facie comprehends everything he claims under it. If its terms be such as may comprehend the whole, and prescriptive possession of the whole has followed, that is sufficient. … Of course if the disputed subjects cannot be claimed without contradicting the terms of the prescriptive deed, as in the base of a bounding charter, no length of possession can establish that claim.”
The Trustees title
In this case, the 1991 disposition conveyed the lands both described in and shown on a plan attached to a disposition in 1977. The 1977 disposition in turn described the subjects conveyed by it, not only by reference to the plan attached to it, but also stated that the subjects were “PART AND PORTION” of subjects shown on a plan attached to a disposition in 1968. However, the plan attached to the 1968 disposition clearly did not include the disputed land. The 1977 disposition therefore made reference to two contradictory plans and Lady Carlton took the view that it was not possible to interpret it as referring only to the plan attached to it[2]. As, in Lady Carlton’s opinion, it was not possible to interpret the description in the 1977 disposition[3] as including the disputed land, the trustees did not have a habile title on which to found their prescription possession[4].
On the other hand, the 2008 disposition in favour of the Quarry Owners did convey the disputed land and gave them valid title to it.
The full judgement is available from Scottish Courts here.
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[1] The relevant prescriptive period at the time of the case (1880).
[2] Lady Carlton noted that if it had been possible to interpret the 1977 disposition as referring only to the plan attached to it (and not to that attached to the 1968 disposition) then it would have been possible to found the prescriptive possession on the 1991 disposition.
[3] Nor, consequently, the description in the 1991 disposition which referring to it.
[4] Lady Carlton also noted that if the 1991 disposition had referred only to the plan attached to the 1977 disposition (but not the description in that document referring to the plan attached to the 1968 disposition) there would have been no contradiction and her decision would have been different.
