When the Title Plan Does Not Tell the Whole Story: The Continuing Importance of Historic Titles
Sarah Wardell is Partner and litigation expert at Davidson Chalmers Stewart which has joined forces with WJM creating a combined firm with more than 200 colleagues operating across Scotland.
Below Sarah discusses the commonly encountered question of boundary ownership and the legal considerations that determine where ownership truly lies – and looks at the practical lessons we can learn from a recent dispute in Grantown-on-Spey:
John Gray and another v The Reidhaven Trustees [2026] SC INV 99 is a fresh reminder of an old Scottish property-law problem: establishing the ownership of a mutual wall or fence. More significantly, it demonstrates the limits of approaching questions of title solely by reference to the title plan.
The dispute concerned the mutual gable, or wall, separating 126 and 128 High Street, Grantown-on-Spey. The proprietors of 128 contended that the entire gable formed part of their registered title. The proprietors of 126 maintained that it was a mutual gable in which they retained a one-half share. The practical dispute arose after works were undertaken at 126 to reopen a disused fireplace. The court found in favour of the defenders, finding that the wall was a mutual gable.
The decision is of interest because the sheriff reached that conclusion by tracing the history of the properties back to their creation in 1817 and 1818. The case therefore offers a useful reminder that, notwithstanding modern registration, the history of a property may remain critical to determining the extent of the right which is registered today.
The properties now known as 126 and 128 High Street were originally separate plots, numbered 39 and 40 respectively, belonging to the Earl of Seafield. Each plot was leased; plot 39 in 1817 and plot 40 in 1818. Both leases included an obligation upon the respective tenants to join with neighbouring possessors in building the garden dykes and gables of houses “marching with each other”, with each having the use and benefit of vents, presses and chimneys in those gables.
The concept of the mutual gable
The judgment brings together a number of older authorities:
Andrew Jack v Rev Dr James Begg (1875) 3 R 35
Andrew Jack v Rev Dr James Begg recognised the familiar situation in which adjoining lots are sold for the construction of a continuous street and the gables of adjoining buildings are constructed so as to operate as mutual gables. The principle rests upon the circumstances in which the properties were developed and, where appropriate, upon an implied arrangement between neighbouring proprietors.
In Gray the sheriff did not rely merely upon circumstances from which an implied arrangement might be inferred. The pursuers argued that a wall could only be treated as a mutual gable where it was constructed partly on the land of each proprietor and the titles expressly declared it to be mutual or common. The sheriff rejected that approach in the circumstances of this case. Although the expression “mutual gable” did not explicitly appear in the leases, Sheriff Lamont considered that their substance was clear: the two adjoining proprietors were to participate in constructing the gable and were each to enjoy the benefit of its associated features. The physical evidence was consistent with that interpretation.
The sheriff considered: (1) what the original titles required; (2) how the buildings were subsequently constructed; and (3) whether the physical evidence was consistent with the legal arrangements contemplated by those titles.
Galloway v Galloway (1888) 16 R 259
In Galloway, neighbouring properties had been held by the same proprietor and one was subsequently conveyed. The disposition did not expressly resolve the ownership of the boundary wall. The court held, in the circumstances of that case, that the conveyance carried a one-half share in the gable, leaving the other half with the proprietor of the adjoining property. Sheriff Lamont regarded the factual situation in Gray as directly analogous.
By 1999, the same proprietor had interests in both 126 and 128 High Street. The 1999 feu disposition conveyed the land comprising 128 to Woodhouse Cars Limited. The description stated that the subjects were bounded towards the north-east and east-north-east by 126 High Street but did not expressly state whether the boundary wall was conveyed in its entirety, retained by the disponer, or dealt with as a mutual structure.
The issue was not simply whether the 1999 disposition's words were broad enough linguistically to include the whole wall. Rather, the question was what interest the disponer was capable of transferring in the circumstances. In Gray therefore, the disponer could transfer the share belonging to 128, but could not thereby extinguish the corresponding proprietary interest associated with 126. The 1999 disposition consequently conveyed a one-half share in the mutual gable, while the owners of 126 retained the other half.
Fraser v Campbell (1895) 32 SLR 400
The pursuers relied upon Fraser v Campbell which concerned a wall that had been found to have been constructed entirely upon one proprietor's ground. The court in Fraser accordingly concluded that the wall was not a mutual gable.
Sheriff Lamont did not regard Fraser as establishing a rule requiring the same outcome here. The crucial distinction was the underlying title position.
In Fraser, the evidence and title demonstrated that the wall belonged to one proprietor.
In Gray, by contrast, the original leases contemplated joint construction and mutual use. The surviving flues and fireplaces corroborated that interpretation. As the sheriff put it, the wall had not simply been built upon the land of one party and subsequently used by the other with permission. It had been constructed as a mutual wall from the outset.
The Land Register and the title plan
The pursuers relied heavily upon title number MOR9668 and the accompanying title plan. Their surveyor had measured the relevant frontage at 13.05 metres, corresponding with the measurement shown on the 2009 disposition plan. It was argued that this demonstrated that the gable wall fell within the pursuers' property.
The sheriff accepted the factual position set out by the pursuers but was of the view that it did not answer the legal question of ownership, concluding that the measurements did not establish ownership of the wall.
Reference was made to the Registers of Scotland guidance on interpreting title plans which advises that where the historic deeds do not provide sufficient detail to determine whether a boundary lies at the inner, middle or outer face of a wall, examination of neighbouring titles may be necessary and legal presumptions may require to be considered.
This is an important practical point. A registered title plan is not necessarily a self-contained answer to every boundary question. Its evidential and legal significance depends upon the title from which it derives and upon the degree of precision with which the boundary is identified.
The sheriff was clear: the 2009 title could not give the pursuers title to the whole wall because their sellers did not themselves own the whole wall. The fact that a measurement on the later plan corresponded precisely with a measurement taken on the ground did not cause the plan to take precedence over the earlier conveyancing documents.
Takeaways
Although Gray arises from a very particular set of circumstances, its practical lessons are wider:
(1) where a property includes or adjoins an historic wall, a title plan should not necessarily be considered in isolation.
(2) historic feu contracts and leases should not be dismissed.
(3) where a property has been carved out of a larger registered title, it is important to establish precisely what interest the larger title contained.
(4) physical evidence can be highly relevant; and
(5) the decision demonstrates the potential importance of neighbouring titles. Where a title plan does not clarify whether a wall is owned wholly, jointly, or to a particular face, the answer may lie not in the title plan itself but in the title of the adjoining property and in the history of the boundary.
