Lord ordinary excludes averments on title to railway crossing in interdict action over contested phone mast installation

About this case:

• Citation:
  [2025] CSOH 95
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Lake

EE Ltd intended to install the mast near the home owned by first defender Ian Appleby, where he lived with the second defender Elizabeth Howe, to eliminate a “partial not-spot” in the network, and sought interdict preventing them from interfering with their entitlement to take access over land owned by another party. The pursuer sought to remove from probation averments by the defenders relating to the first defenders alleged title to a level crossing used by them to access the installation site.

The case was heard by Lord Lake in the Outer House of the Court of Session, with Mitchell, advocate, appearing for the pursuer and the defenders appearing as party litigants, with the second defender primarily acting for both of them.

No relevant defence

The pursuer had previously obtained planning permission for the mast as well as consent from the owner of the land on which it was to be situated, Caledonia Forest Land Investments Ltd. It was averred that the defenders had obstructed the level crossing at Altnabreac by locking gates, parking vehicles across the track leading to the crossing, and erecting fences. The action was defended on the basis that the crossing was owned by the first defender, who sought for the pursuer to enter into an access agreement with him in return for payment.

It was the defenders’ position that the solum of the railway was conveyed in a disposition recorded in 1979, and thereafter the rights to the crossing were conveyed to the first defender, whose property was formerly part of the Loch Dhu estate, and he was in the process of obtaining confirmation from the Land Register. Counsel for the pursuer submitted that the statement that the first defender intended to register a Notice of Title in relation to the solum of the level crossing was an acknowledgement that they did not presently have a real right to anything other than the land.

The pursuer accepted that the first defender had servitude rights over the land owned by CFLIL, but it was submitted that they were not a relevant defence to the pursuer’s claims of interference with their access. The rights claimed by the pursuer would not interfere with and were not excluded by the first defender’s rights. It was contended that the existence of servitude rights in the first defender’s favour did not entitle him to prevent any other person exercising rights over the same land.

For the defenders it was submitted that the first defender had a valid legal claim to the land at the private level crossing, while the pursuer lacked any standing to challenge that title. As CFLIL had not been in a position to grant rights in respect of the crossing, the pursuer’s remedy was against them. Because the first defender was in a position to have a Notice of Title registered, he had a patrimonial right and should be protected from third parties.

Not in the residue

In his decision, Lord Lake said of the issue of title: “The defenders are the ones that have put their claim to ownership of the level crossing in issue by relying in it to defend their actions. The pursuer has responded to that and, in so doing, has challenged the relevancy of the averments. This does not mean that the action is about who owns the crossing. It is about whether the defenders carried out the acts the pursuer avers they did to interfere with them obtaining access to the mast and, if so, whether they have a defence.”

He added: “The defenders claim that the solum was conveyed in terms of the 1979 Disposition. This is incorporated into the defenders’ pleadings. It is apparent on its face that it was registered. This means that if the level crossing was included in the subjects conveyed by it, the disponee, John Archibald Sinclair, would have been infeft. This leads to two issues; (1) was the solum of the crossing part of the subjects conveyed in the 1979 Disposition and (2) if it was, how was title transferred from John Archibald Sinclair to the first defender.”

Noting that the plan attached to the 1979 Disposition did not include the solum of the crossing, Lord Lake said: “On the basis of the defenders’ averments, the title to Station House was not part of the residue of the estate but was part of a break-off from the Loch Dhu Estate and then a further break-off to the current title. Their averments are that the remaining parts of the first break-off from which the second break-off was made was ultimately conveyed to CFLIL. They aver also that part of the residue of the Loch Dhu Estate from which the first break-off was made was subject to further break-offs.”

He added: “These subjects are also said to be owned by CFLIL. There is no averment as to who owns the residue of the Loch Dhu Estate. If the railway solum was to be part of the first defender’s title it would have to have been included within the subjects conveyed as part of the break-off disposition in 2014 and as part of the further break-off in 2016. This is not what the defender avers.”

Lord Braid concluded: “As I note above, the counterclaim proceeds on the basis that the first defender owns the solum of the level crossing. Both the averments that he presently owns it under Title CTH7726 and the averments that he has an entitlement to ownership and can made himself infeft are irrelevant for the reasons given above. The counterclaim as a whole is therefore irrelevant.”

The court therefore sustained the pursuer’s first plea-in-law and refused probation in respect of the defenders’ averments on solum rights, with the case thereafter put out for further procedure.