No rule that deed description prevails over plan: SAC
There is no rule of law that in the event of discrepancy a verbal description prevails over a plan, and a sheriff was correct to allow proof before answer in an action claiming title to a lane referred to in a plan but not the description of the subjects, where the disposition in question was susceptible to a construction that included the lane, the Sheriff Appeal Court has held.
Sheriff Principal Sean Murphy KC, Appeal Sheriff Harry Small and Appeal Sheriff Thomas McCartney gave the ruling in an action between the proprietors of two properties in Edinburgh, in which the pursuer, Isabella Langskaill, sought declarator that her title was habile to include a lane for the purposes of prescriptive possession and interdict against encroachment by the defender, Tracy-Anne Black, who counterclaimed that she had servitude access.
The pursuer’s late husband purchased her property, accessed via the lane in 1962. They subsequently acted as if heritable proprietors of the lane, but in about 2010 the husband discovered his title did not include the lane. In 2011 he granted a disposition a non domino to the pursuer to include title to the lane. She later reconveyed a half share to him, which reverted to her on his death. The defender currently sought planning consent to create an access from the lane. She claimed a servitude right of access; the pursuer claimed this had negatively prescribed.
The 2011 disposition incorporated an earlier description of 1922, which did not include the lane, but concluded by referring to a plan annexed to the disposition, which included the lane. The pursuer accepted that the description was inherently contradictory.
Appealing against the sheriff’s decision to allow proof before answer, the defender argued that the 1922 verbal description was a bounding description which in stating that the subjects were in part bounded by the lane, did not include the lane; there was a manifest discrepancy between that description and the 2011 plan which could not be reconciled, and the general rule in such a case was that the general description prevailed unless the plan was declared to be taxative. It was for the pursuer to aver circumstances to support a departure from that rule.
Giving the opinion of the court refusing the appeal, Appeal Sheriff McCartney applied Auld v Hay (1880), which held that whether a title could found prescriptive possession depended on the terms of the deed itself and not on extrinsic evidence or possession. Notwithstanding the doubt arising from the inconsistency between the description and the plan, the 2011 disposition was “susceptible of a construction which would embrace a conveyance of the lane”.
He continued: “It is not a rule of law that in the event of discrepancy a verbal description prevails over a plan. Properly understood, the various textbook references on which the defender relies do not set out strict rules of law in respect of construction. Rather they set out what has been gleaned from various decided cases in respect of disputed boundaries as to what are the most reliable indicators of the true boundaries… There have developed certain broad presumptions as to what is the more reliable description of a boundary, but they are not rigid rules of law.”
The court rejected the defender’s contention that on the face of the 2011 disposition the plan was subordinate to the verbal description. “The 2011 disposition describes the property by reference to the bounding description in an earlier disposition and by reference to a plan. There are no words to the effect that one is to prevail over the other.” That conclusion was consistent with the 1950 Inner House case Nisbet v Hogg.
“We have concluded that the sheriff correctly appointed the cause to a proof before answer on the basis that whether a plan (whether taxative or not) or a verbal description prevails is a matter of circumstances and habile for enquiry.”