SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Hardie Lord Malcolm	[2011] CSIH 60 OPINION OF THE LORD JUSTICE CLERK in the Special Case stated by the Scottish Land Court in the application by HEATHER MARY JARDINE Respondent; against WILLIAM ROSS MURRAY Appellant: _______

For the appellant: Sir Crispin Agnew of Lochnaw, QC; Currie Gilmour & Co

For the respondent: Party

27 September 2011

Introduction

[1] This is a special case stated by the Land Court on five questions arising from a decision of the Full Court in an application relating to the crofting township of Dalhalvaig, Forsinard, Sutherland. The respondent is tenant of croft 47. The appellant is tenant of crofts 49 and 51.

[2] The Dalhalvaig crofts share in the Halladale common grazings. The issue between the parties is whether about two-thirds of an area known as the White Well Park forms part of croft 47 or is part of the common grazings. The White Well Park lies to the east of the public road through Dalhalvaig. The appellant contends that virtually all of the croft land in the township lies to the west of the road and that the land to the east is, with a few exceptions, common grazings. The respondent contends that all of the land to the west of the road is croft land and that there is also a considerable area of croft land to the east of it.

[3] The appellant and his family have occupied the area in dispute for a considerable time. The respondent applied to the Land Court for a finding that the area in dispute was part of croft 47 and always had been. The application came before a Divisional Court (Mr David J Houston). Mr Houston is one of the specialist agricultural members of the court. At the outset the appellant claimed that the area in dispute was part of his own croft 51. During the proof he abandoned that claim and contended that the area was part of the common grazings. In a decision dated 16 April 2009 the Divisional Court determined that the relevant area of the White Well Park was part of the respondent's croft.

[4] The appellant appealed to the Full Court. He sought leave to lead additional evidence at the hearing of the appeal. By Order and Note dated 23 June 2010 the Full Court refused to admit the proposed evidence and refused the appeal.

[5] In the special case the deputy chairman of the Land Court, Sheriff Roderick Macleod, has helpfully summarised the findings of fact of the Divisional Court. To a great extent both sides accept the findings of primary fact. They differ as to the inferences and conclusions that are to be drawn from them. The essence of the dispute lies in the conflict as to the extent of croft 47 between the evidence of the estate records, and other documents based on them, which indicate an area of about 11 acres, and the evidence of certain maps and of exclusive possession by the tenants of croft 47 for at least a century, which indicate an area of about 25 acres.

The history of the Dalhalvaig township

[6] The township of Dalhalvaig was formerly part of the Duke of Sutherland's estate. It was part of the estate at the passing of the first Crofters Act, the Crofters (Scotland) Act 1886 (the 1886 Act). In 1919 it passed out of the ownership of the Duke of Sutherland. The present landlord is the Bighouse Partnership, which the respondent convened to the application. It did not compear.

[7] The Dalhalvaig crofts were in existence before 1886. Until 1919 the Sutherland estate kept two records of the crofts; namely the rent book and the records of the estate's local officials, the ground officers.

[8] The rent book contained an entry for each croft recording the successive tenants, describing the holding by reference to a plan, setting out estimated acreages for the arable and unimproved land, the croft's share in the hill pasture, the presence of any dwellinghouse and offices, the souming for the holding, any assistance given by the estate and any improvements made by the crofter. The rent book for Dalhalvaig was before the Divisional Court. It covered a period from the 1830s to about 1917.

[9] The records of the ground officers recorded any relevant changes or events affecting the holding. The Divisional Court had before it a number of these records relating to changes in rent in the period from 1891 to 1907.

[10] The Sutherland estate also held maps showing the boundaries of each croft for many, if not most, of its crofting townships. They were treated by the estate staff as authoritative on any question regarding croft boundaries. There is no authoritative estate map covering Dalhalvaig.

[11] The Divisional Court also had before it a print produced in 1889 of the 1878 edition of the 1:10,560 ordinance survey map (the 1889 map). This print was used by the Sutherland estate. It bears various annotations, the dates and the authorship of which are not known. I shall call this the Sutherland estate map.

[12] The Divisional Court concluded that there was little doubt that land on both sides of the public road had been individually occupied by crofters and landholders in the township effectively as part of their holdings since at least 1909 and that that continued to be the case today (para [12]).

Croft 47

Estate records

[13] The entries in the rent book for croft 47 went back to 1854. An entry dated 1889 showed that the estimated acreage was 11.02 acres, being 5.27 acres of arable land, one acre of reclaimed land and an outrun of 4.75 acres of unimproved land. The entry contains references to a plan, but no plan now exists.

[14] In the records of the ground officers there were two entries relating to croft 47. They recorded that in the year ending 31 October 1891, the holding extended to about six and a half acres of arable and four and half acres of outrun; and that in the year ending 31 October 1907 it extended to 6 acres, 1 rood and 8 poles of arable and 4 acres, 2 roods and 32 poles of outrun. These records are consistent with the rent book.

Legal processes affecting croft 47

[15] The Divisional Court had evidence of four legal proceedings and one administrative procedure affecting croft 47 in the period from 1891 to 1956. I shall call these the five legal processes. They cover the period after the 1886 Act, which created the first Crofters Commission; the period after the Small Landholders (Scotland) Act 1911, which extended statutory tenure of smallholdings to the whole of Scotland under the name of landholder's tenure; and the period after the restoration of crofting tenure in the seven crofting counties and the creation of the second Crofters Commission by the Crofters (Scotland) Act 1955 (the 1955 Act). The processes were as follows: (i) the application by the Sutherland estate to the Crofters Commission in 1891 for the fixing of fair rents for the Dalhalvaig crofts; (ii) the application by the then landholder tenant to the Land Court in 1927 for re-determination of the rent; (iii) the application to the Land Court in January 1945 by the Halladale Grazings Committee for approval of proposed common grazings regulations; (iv) the application by the then landholder of croft 47 to the Land Court in December 1945 for a re-determination of the rent, and (v) the return made to the Crofters Commission by the then landlord in 1956.

[16] The 1891 application was the first application by the landlords to the newly established Crofters Commission, in the aftermath of the 1886 Act, to have a fair rent fixed for the crofts in the township. The application was drafted by the factor. He declared the acreages to be those in the rent books. On 27 April 1891 the croft was inspected by assessors appointed by the Commission. In the light of the inspection the Commission did not alter the acreages that were set out by the estate in the factor's application. The Commission fixed a fair rent on the basis of those acreages. A copy of the landlord's application to the Crofters Commission is a production. It records that the applicant's croft extended to 6 acres, 1 rood and 8 poles of arable land and 4 acres, 2 roods and 32 poles of outrun. Alexander Gunn, the tenant of the contiguous croft, croft 46, appealed against the Commission's determination. In a letter to the Commission he gave the extent of croft 46 as being 4 acres 1 rood arable, 1 acre 1 rood outrun and a share of the hill pasture. This was consistent with the estate records of his croft.

[17] In 1927 the tenant of croft 47, George Gunn, applied to the Land Court to have his rent reviewed. In his application he entered certain acreages but later scored them out and substituted the acreages shown in the estate records. The entry finally showed croft 47 as having the same acreages for the arable and the outrun as were recorded in the 1891 process before the Crofters Commission.

[18] The documents relating to the application by the landholders in 1945 for the regulation of the common grazings do not mention the extent of the individual crofts, nor do they contain any information that is inconsistent with the acreages for croft 47 to which I have referred.

[19] The December 1945 rent application gave the arable acreage as being 6 acres, 2 roods. There is no figure for the outrun. The Court's final Order dated 20 June 1946 refers to the holding as extending to about 11 acres arable and outrun.

[20] The return made in 1956 to the new Crofter's Commission by the then landlord in the aftermath of the 1955 Act shows croft 47 as having the same acreages as were shown in the 1891 application.

The Inland Revenue survey and the Revenue map

[21] The Finance Act 1910 introduced a tax on increases in the value of land resulting from the expenditure of public funds on communal developments such as roads and public services. In consequence the Board of Inland Revenue had to ascertain the value of all relevant land in the United Kingdom as at 30 April 1909. This task was carried out in the years 1912 to 1915 by a valuation office established for the purpose. The work was recorded in field books recording details of each unit of property and in maps showing the boundaries of the units. These were records of occupancy rather than of ownership.

[22] The relevant documents from this survey indicate that at that time croft 47 was held on a rent of £8.10/- per annum and that the croft was described as "house and land." That description is in accordance with the Sutherland estate records; but the extent of the croft is recorded as being 25 acres. The relevant map (the Revenue map) is an annotated copy of the 1:10,560 ordnance survey map (second edn, revd 1904, pubd 1908). It shows croft 47 as including about two-thirds of the White Well Park and records that as at 30 April 1909 that area was occupied by the tenant of the croft.

The Sutherland estate map

[23] On this map what is now known as the White Well Park forms part of a larger area on which the legend "47?" has been pencilled.

Other crofts in the township

[24] There was also before the Divisional Court evidence that throughout the township there were marked discrepancies between the areas occupied by individual crofters and the areas shown in the Sutherland rent book; and that in every case the area occupied was considerably greater.

The decision of the Divisional Court

[25] The Divisional Court concluded that croft 47 extended to 25 acres. In general, it considered that the rent book identified those parts of the croft that had any rental significance, the balance of the 25 acres being land that was insufficiently important to be entered in the estate records; and that the rental change evidence reflected what was in substance a replication of the figures in the estate records. Those records were therefore incomplete. The Divisional Court took the view that the five legal processes did not have as their function or focus that of determining the extent of the croft. It was probable that the acreages mentioned in those processes had simply been taken from the existing estate records.

[26] The Divisional Court regarded the Revenue map as the best evidence of individual occupation as at 1909 or thereby; and also as the best evidence of occupation as of right. It preferred the evidence of the Revenue map since it completely fitted in with other contemporaneous evidence. It acknowledged that it was not known how the Inland Revenue surveyors had come to draw the lines of demarcation between croft 47 and the common grazings; but, having inspected the land, it concluded that where it could identify parts of those lines on the ground, the lines followed some physical feature that had not been recorded on the 1904/1908 edition of the ordnance survey map. It was clear to the Court from the Inland Revenue data sheets that the Revenue map was based on an inspection of the land. The Divisional Court thought it inconceivable that in drawing it up, the Inland Revenue team had failed to consult with the estate (paras [146] and [148]).

[27] The Divisional Court held, on a balance of probabilities, that the Sutherland estate map was a working map and that the annotations on it were made before the sale of the relevant part of the estate in 1919. It found that there was a close correlation between what was shown on this map and what was shown on the Revenue map. The Sutherland estate map also correlated well with the rent book in showing three areas, marked respectively 63, 64 and 65, which corresponded with the numbers given for the areas of arable land in the rent book.

[28] It held that the explanation for the discrepancy in the acreages for the Dalhalvaig crofts, and in particular the discrepancy in acreages relating to croft 47, was (a) that the estate did not in practice record the whole land comprised in the crofts in its rent book, possibly as part of a practice of not recording land that was of little value; and (b) that the acreages stated in the rent book were repeated in the Crofters Commission process in 1891, and in the other legal processes, all without fresh or independent verification.

[29] The Divisional Court found that the occupancy by the tenant of croft 47 of that part of the White Well Park shown in the Revenue map as being part of the croft had never been challenged by the heritable proprietors of the land in question at any time since 1909; that at the passing of the 1886 Act the respondent's croft included about two-thirds of the White Well Park; that that had been the case ever since; and that the remainder of the White Well Park was part of the common grazings. The Divisional Court noted also that there was no evidence that any shareholder in the common grazings other than the appellant had ever challenged the occupancy of the relevant area of the White Well Park by the tenant of croft 47.

[30] The Divisional Court regarded it as significant that throughout the township the areas occupied by individual crofters were greater than those shown in the rent book. It concluded that:

"To have a whole township apparently occupying of the order of at least 30% more land than they were entitled to in the face of scrutiny by neighbouring tenants and their families and by the landlord's ground officers who clearly made it their business to know intricate details of those tenants, their families and their holdings, persuades us that such occupancy or apparent enlargement was not unofficial" (para [267]).

[31] The Divisional Court set out the evidence in detail and evaluated each adminicle in light of the competing submissions. The Full Court commented that the whole of the Divisional Court's judgment was characterized by "painstakingly careful and objective analysis." I agree with that comment.

[32] For reasons that I will give, I do not consider that it is for this court to reach its own conclusions on the evidence. I therefore do not propose to re-examine each and every item of evidence or to weigh up the competing interpretations of that evidence by the parties' solicitors before the Divisional Court and the Full Court. It is sufficient to say that I agree with the conclusion of the Full Court that the choice with which the Divisional Court was presented was a choice

"between documentary evidence to which no one can now speak and which contains insufficient detail to identify the croft 'on the ground,' on the one hand, and, on the other, evidence of uncontentious occupancy going back a century and taking us up to within 23 years of the passing of the 1886 Act, and which is explained in the evidence on no other basis than that the land was let as part of a croft" (para [128]).

The appeal to the Full Court

The motion under Rule 69

[33] The appellant moved the Full Court for leave to lead additional evidence, all of it documentary. Items 1 to 5 are documents from the Sutherland Estate papers held in the National Archives of Scotland. They were recovered after the Divisional Court issued its decision. They are said to demonstrate that the procedure of the Crofters Commission in 1891 involved inspection and estimation of the extent of the Dalhalvaig crofts by officers of the Commission rather than a simple acceptance that the estate records were accurate. Item 6 is the notebook of John Box, the Sutherland estate factor who applied to the Crofters Commission in 1891 to fix fair rents. It was discovered in May 2009 in the course of other investigations. It is said to demonstrate that the landlord's evidence in that process as to the extent of the Dalhalvaig crofts was based on material provided to the factor by the ground officer and not by mere repetition of the estate records. It contains the factor's notes of the evidence given to the Commission in the course of the 1891 application. In that evidence two crofters said that the acreages of their crofts were those given in the application. Neither was the tenant of croft 47. Items 7 and 8 are entries in the field books of the Inland Revenue survey relating to two Sutherland estate crofts in other townships in Strath Halladale, namely 10 Achuimore and 16 Aultsmeagle. Items 6, 7 and 8 are said to demonstrate that the true extent of the crofts was consistent with the estate records and inconsistent with the larger areas given in the Inland Revenue survey material.

Grounds of appeal

[34] The appellant submitted that the Divisional Court had erred in law (1) in holding that the respondent had discharged the onus of proving that the disputed area was part of her croft; and (2) in its interpretation of (a) the estate rental documents; (b) the repetition of the areas in the five legal processes; (c) the Inland Revenue survey documentation; and (d) the evidence relating to the widespread occupation of parts of the common grazings by crofters in the township.

The Full Court's decision and reasons

The decision on the motion to lead additional evidence.

[35] The Full Court refused the appellant's motion. Its reasons were that it had been the appellant's case since July 2007 that all of the White Well Park was part of the common grazings. The appellant's own affidavit showed that as early as March 2007 he had been advised by a previous owner of the estate to contact Sutherland Estates, and that by November 2008 Sutherland Estates had told him that their records were now with the National Archives. Despite that, no search of that archive had been made until after the Divisional Court issued its judgment. It could not be said that that material could not with reasonable diligence have been produced before the Divisional Court gave its judgment. Items 1 to 5 were therefore not res noviter, and for that reason would not be admitted. The Full Court was satisfied that item 6 was res noviter. Although it was not clear how items 7 and 8 came to light, the Full Court was prepared to treat them as being res noviter. Since none of the relevant evidence contained in these items related to croft 47, the Full Court did not consider that it "might have materially affected" the judgment of the Divisional Court (Maltman v Tarmac Civil Engineering Ltd 1967 SC 177).

The decision on the merits

[36] The Full Court consisted of the Deputy Chairman and two of its practical members. The proceedings were in the nature of an appeal against the decision of the Divisional Court (Land Court Rules 67ff) rather than a re-hearing (Land Court Rules, 78ff). In terms of Land Court Rule 87 the Full Court had to consider whether it was necessary for it "to set right any substantial error, omission, defect, wrong or miscarriage of justice." It approached that question as a specialist court and in that capacity it considered, in particular, whether the Divisional Court had been justified when it made certain inferences favourable to the respondent's case. It noted that it was not disputed that the Divisional Court had been entitled to conclude that as at April 1909 the tenant of croft 47 had occupied the area of the White Well Park that was shown on the Revenue map. It considered that the Divisional Court had been entitled to infer that the estate had known that the tenant was in occupation of that area and had taken no issue with this; and that the extent of occupation in 1909 was co-extensive with the original grant, there being no evidence that anything had changed in the meantime. The only legitimate conclusion was that the tenant occupied the relevant area as part of croft 47, no other basis having been suggested. As to the competing evidence, the Divisional Court had been entitled to conclude that the rent book did not necessarily determine the extent of the croft. The current assistant factor of Sutherland estates could not comment on how entries had been made in the late nineteenth century. From the rent book and the other documentation relied on by the appellant only the three fields referred to by number could be identified. It was impossible to identify the outrun, and consequently the croft boundaries. There was evidence of occupation of a much larger area. None of the five legal processes involving croft 47 had involved a determination of the croft's boundaries or extent, and in some instances had involved a repetition of figures given in earlier records. The Full Court concluded that on all material points of fact the Divisional Court had been entitled to reach the conclusions that it reached. In particular it had not erred in preferring the evidence of uncontentious occupancy of the land in question. That occupation could be explained only on the basis that the land was let as part of the croft. It could find no error in fact or in law in the Divisional Court's conclusions.

The special case

The questions

[37] The appellant has requisitioned the special case on the following questions:

"1. Did the Full Court err in its approach to the assessment of the evidence
before the Divisional Court?

2. Having regard to all the evidence before the Divisional Court, did the
Full Court err in refusing the appeal and in holding that the Divisional Court had not erred in preferring the evidence in the Inland Revenue map over the evidence in the estate and other official records as to the extent of Croft 47?

3. Having regard to all the evidence before the Divisional Court, did the Full Court err in holding that the Divisional Court was entitled to arrive at the conclusions expressed in statements of fact 2.20 and 2.21 above?

4. Having regard to all the evidence before the Divisional Court, did the Full Court err in refusing the appeal?

5. Having regard to the submissions made to the Full Court, did the Full Court err in refusing to admit the additional documentary evidence in the Fifth Inventory of Productions for the respondent?"

The case for the appellant

Alleged errors of law

[38] The appellant submits that the Full Court made four errors in law. First, it erred in its approach to the Divisional Court's findings in fact. It should have evaluated the evidence for itself. It should have concluded that the respondent had failed to discharge the onus of proving that the White Well Park was part of croft 47. Second, it erred in accepting the Divisional Court's conclusion that the Revenue map determined the extent of croft 47. Having accepted that the rent book was a model record, the Divisional Court was not entitled to reject it as the best evidence of the extent of the croft. If the Full Court had evaluated the evidence for itself it would have preferred the evidence of the rent book to that of the Revenue map, having regard to the other evidence in the case. Third, no reasonable court would have preferred the evidence of the Revenue map to the competing evidence and concluded that any part of the White Well Park was part of croft 47. Fourth, the Full Court had acted unreasonably in not allowing the proposed additional evidence.

Approach to the evidence

[39] The case for the appellant is that the respondent failed to discharge the onus of proof, and that the correct conclusion on the evidence was either that the disputed areas was part of the common grazings, or at least that it was not possible on the evidence to say whether it was part of the common grazings or part of the respondent's croft. In general, the appellant's position throughout has been to point to the unlikelihood (1) that the estate records were made carelessly; (2) that the landlord would have any reason knowingly to understate the extent of the croft; (3) that in making the 1891 application the estate factor would have understated the extent of the croft by more than 50%; (4) that the error, if made, would not have been picked up by the assessors who inspected the crofts in April 1891 for the purpose of assessing fair rents; and (5) that the crofter of croft 46, Alexander Gunn, would have said that he occupied the area shown in the estate records if he had occupied more than that.

[40] On that basis the appellant submits that the Divisional Court was not entitled to hold that the description of the croft and of its constituent parts in the rent books and in the reports prepared by the ground officers was anything less than a full description of the croft. The minor discrepancies between the areas shown in the various documents indicate that at each stage the area was re-assessed rather than simply continued from one document to the next. The Divisional Court's conclusion that the croft extended to 25 acres was merely speculation.

[41] The appellant further contends that the Inland Revenue map provides no proper basis for the conclusion that the extent of croft 47 indicated in that map bore any relation to the true extent of the land that was let as at 1886. The purpose of the Inland Revenue surveyors had not been to fix croft boundaries. The Inland Revenue evidence merely showed the actual occupation of croft 47 and was consistent with the crofter's having de facto appropriated an area of common grazings by enclosing it for his exclusive use. The appellant's present position is ironic in light of his original claim that the area in dispute was part of his own croft 51.

Interpretation of the legal processes

[42] The appellant submits that the five legal processes all support the view that the original entry in the rent book was correct; that between 1891 and 1956, in all five, the area of croft 47 was treated as being substantially in line with the estate records; and that the Divisional Court erred in holding that, since the extent of the croft was not in issue in any of those processes, the probability was that the acreage had simply been taken from the existing records. It was unreasonable for the Divisional Court to infer, for example, that George Gunn gave no thought to the extent of his croft when he made the 1927 application.

Conclusions
The nature of this appeal

[43] An appeal lies to this court from the Land Court on "any question of law arising in the proceedings" (Scottish Land Court Act 1993, s 1(7)). The appeal is against the decision of the Full Court on both points. It is apparent that the first four errors of law imputed to the Full Court in effect challenge the findings and reasoning of the Divisional Court. In substance the answers to questions 1 to 4 are answers to the question whether the Divisional Court was entitled to make the findings that it made or whether its decision was vitiated in all or any of these four respects. Question 5 raises a separate issue. On the main issue, the questions for this court are whether the Divisional Court was entitled to make the crucial finding in fact as to the extent of the croft; and whether the Full Court was correct in its approach to the appeal.

The general position of an appellate court in relation to findings in fact

[44] Where a finding in fact depends on the assessment by the judge at first instance of the credibility and reliability of a witness or witnesses, that finding will, in general, not be disturbed by an appellate court (Thomas v Thomas 1947 SC (HL) 45; Angus v Glasgow Corporation 1977 SLT 206, Lord President Emslie at p 213). But an appellate court is entitled to interfere where the finding in fact complained of does not bear to have turned upon the observations or impressions of the witnesses in the lower court. In such a case, the appellate court is free to examine for itself the stated reasons given by the court of first instance and to reach its own conclusion (Angus v Glasgow Corporation, ibid). An appellate court may also interfere where the issue relates to the inferences to be drawn from undisputed primary facts; or where it is satisfied that there was no evidence for the finding in fact complained of; or where the evidence was inconsistent with it or was contradictory of it (IRC v Fraser 1942 SC 493, Lord President Normand at pp 497-498).

[45] These general propositions have to be considered in the context of the present appeal and, in particular, on a consideration of the nature and functions of the Land Court itself.

The approach to fact finding in the Land Court

[46] The Land Court's approach to fact finding has two special features; namely, its flexible and informal approach to the evidence and its application to the fact-finding process of its own knowledge and expertise. The Land Court is not an ordinary court of law. It is a specialist court whose members have expert knowledge of inter alia crofting agriculture and the social and economic conditions and customs in the crofting communities. It also has the advantage in most cases of carrying out a formal inspection of the land to which the dispute relates. The inspection is generally a primary evidential source (cf Macpherson v Shareholders in Achintee Common Grazing, 1965 SLCR App 98 (DC)).

[47] Crofting cases are dealt with at first instance on circuit by a Divisional Court consisting of a single member, who is usually one of the practical members of the court. The Divisional Courts have a unique body of expertise and understanding with which to deal with questions of the kind that this case has raised.

[48] It is with these considerations in mind that, in my opinion, we should assess the adequacy of the Divisional Court's findings and the criticisms of the Full Court's decision that are made in this appeal.

The approach of this court to the decision of the Divisional Court

[49] The decision of the Divisional Court was a judgment in which the expert member of the Court was required to apply his own special knowledge of the law and practice applicable to crofting townships, and in particular the relationship between the inbye land of the croft, the outrun and the common grazings. In my opinion, where such knowledge informs the Divisional Court's analysis and interpretation of the historical evidence, an appellate court such as this, which does not profess such expertise, should not interfere. That principle applies, in my opinion, even where, as in this case, the decision of the Divisional Court has not turned on an assessment of the credibility or reliability of any of the witnesses (Full Court's Note, para [87]) or on the application of any findings of primary fact to any particular statutory expression (IRC v Fraser, supra). Even a process of inference and conclusion from undisputed primary fact may, where it lies squarely within the scope of the lower court's expertise, be one into which an appellate court should not venture. That, in my view, is the case here.

[50] I am confirmed in this opinion by the fact that the Divisional Court inspected the township and that the findings of its inspection in relation to the topography of the common grazings were a material factor in its decision. That clearly emerges from the Divisional Court's consideration of the Revenue map and from the section in its decision headed "Ground features." Although the Divisional Court concluded that nothing seen on inspection affected its analysis of the evidence or the outcome of the case (para [238]), it did take from its inspection that there were sufficient remnants on the ground of relevant features such as wet and dry ditches and turf/stone dykes to justify the conclusion that the boundary line of the land labelled "457" on the Revenue map, that is to say 47 Dalhalvaig, was not an entirely random one (paras [149]-[150]). It also concluded that, generally speaking, the pattern of occupancy that it saw was essentially similar to that depicted on the Revenue map and on the Sutherland estate map. It considered that despite the evidence to the contrary, there was and had been a general pattern in the parts of the township, and the adjacent ones to which the Court was taken, in which the land on the east side of the road tended to lie opposite land under the same occupancy on the west. The Court accepted the respondent's observation that the juxtaposition of the White Well Park to what was indisputably croft land of 47 (the trenching park) to the west could be regarded as supportive of its being part of that croft (para [241]). The Court also relied on its knowledge that in the early crofting period large parts of crofts, and particularly of outrun, were not enclosed. In such cases the outrun, although unenclosed, was individually allocated to crofts and each crofter knew precisely his own boundaries on the ground (para [263]).

[51] This court is therefore at a clear disadvantage to the Divisional Court when considering the significance of the findings of primary fact and in my view must defer to the Divisional Court's expertise.

The decision of the Divisional Court

[52] Before this Court senior counsel for the appellant took substantially the approach that had been taken on behalf of the appellant in the courts below as to the inferences to be drawn from the findings of primary fact. He conceded that there was evidence to support the Divisional Court's critical finding in fact that at the passing of the 1886 Act croft 47 included the relevant area of the White Well Park and had included it ever since. That concession, in my opinion, could not have been withheld. The result of it is that this appeal can succeed only if the appellant can establish that, notwithstanding the evidence that warranted the finding in fact complained of, the contrary evidence was such that the finding in fact was one that no court could reasonably have made. I understood senior counsel to accept that.

[53] Since the agreed starting point is that there was evidence entitling the Divisional Court to reach the conclusion that it did, I consider that the weight to be given to the evidence in favour of that conclusion was entirely a matter for the Divisional Court in the application of its expertise. I have summarised the Divisional Court's reasoning. I am satisfied that it had rational and clear reasons to prefer the case for the respondent to that for the appellant.

The decision of the Full Court

[54] The next question is whether the Full Court should have substituted its own decision for that of the Divisional Court. The approach of the Full Court was to consider whether there was evidence warranting the critical finding in fact made by the Divisional Court and, having decided that there was, to leave the finding in fact undisturbed. The submission for the appellant was that the Full Court should instead have examined the Divisional Court's narration of the evidence and, applying its own expertise, substituted a judgment in favour of the appellant.

[55] It is important to bear in mind that the Full Court did not proceed in this case by way of re-hearing. It simply conducted an appeal in which it had to consider whether it had reason to set right any substantial error, omission, defect, wrong or miscarriage of justice (Land Court Rule 83). The Full Court heard detailed submissions on every aspect of the evidence. It was satisfied that, as is now conceded, there was evidence to support the Divisional Court's conclusion. It could find no error of fact or law in the Divisional Court's findings and reasoning. I am in no doubt that that was the correct approach. It would have been wrong of the Full Court to have in effect conducted a retrial on the facts.

[56] The remaining question is whether the Full Court was right to refuse the motion to lead new evidence. It is obvious that the res noviter principle is a safeguard against abuse. It is an incentive to the litigant to prepare thoroughly and to have all relevant evidence to hand in advance of the proof. It deters a litigant from keeping evidence up his sleeve to be brought out if he is unsuccessful at the proof. In relation to items 1 to 5, I agree with the decision of the Full Court, for the reasons that it gave, that none of that material was res noviter.

[57] The Full Court accepted that item 6 was res noviter and was prepared to proceed, generously in my view, on the basis that the evidence of items 7 and 8 could be regarded as res noviter; but it concluded that in the circumstances none of that evidence, if led, would have made any material difference to the decision of the Divisional Court. I can see no reason why we should disturb the decision of the Full Court on the point. I agree with it.

[58] I conclude therefore that this appeal falls to be refused in both of its branches.

Disposal

[59] I propose to your Lordships that we should answer all five questions in the special case in the negative.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION
Lord Justice Clerk Lord Hardie Lord Malcolm	[2011] CSIH 60 OPINION OF LORD HARDIE in the Special Case stated by the Scottish Land Court in the application by HEATHER MARY JARDINE Respondent; against WILLIAM ROSS MURRAY Appellant: _______

For the appellant: Sir Crispin Agnew of Lochnaw, QC; Currie Cilmour & Co

For the respondent: Party

27 September 2011

[60] For the reasons given by your Lordship in the chair I agree that we should answer the questions posed as proposed by your Lordship.

SECOND DIVISION, INNER HOUSE, COURT OF SESSION [2011] CSIH 60
Lord Justice Clerk Lord Hardie Lord Malcolm	OPINION OF LORD MALCOLM in the Special Case stated by the Scottish Land Court in the application by HEATHER MARY JARDINE Respondent; against WILLIAM ROSS MURRAY Appellant: ___________

For the appellant: Sir Crispin Agnew of Lochnaw, QC; Currie Gilmour & Co

For the respondent: Party

27 September 2011

[61] The applicant and respondent in this appeal is Heather Mary Jardine. She is the tenant of croft 47 Dalhalvaig. She applied to the Land Court for a determination of the boundaries of the croft. The application was heard by a Divisional Court. By the time of its decision the sole issue was whether an area of ground known as the White Well Park was part of the respondent's croft. The parties contesting the issue were the respondent and the appellant, William Ross Murray of crofts 49 and 51, Dalhalvaig (who was the second respondent in the original proceedings). He initially contended that the White Well Park was part of croft 51, which failing it was part of the common grazings. In the course of the proof he abandoned the first position and maintained that the Park was part of the common grazings. On 16 April 2001 the Divisional Court issued its decision that croft 47 included part of the Park.

[62] Mr Murray appealed to the Full Court. By interlocutor of 23 June 2010 the appeal was refused, as was a motion for additional evidence to be led. The appellant then requisitioned a Special Case for the Opinion of the Court of Session under section 1(7) of the Scottish Land Court Act 1993, contending that the Full Court erred in law. The questions of law now submitted to the Court of Session are as follows:

(1) Did the Full Court err in its approach to the assessment of the evidence before the Divisional Court?

(2) Having regard to all the evidence before the Divisional Court, did the Full Court err in refusing the appeal and holding that the Divisional Court did not err in preferring the evidence in the Inland Revenue map over the evidence in the estate and other official records as to the extent of croft 47?

(3) Having regard to all of the evidence before the Divisional Court, did the Full Court err in refusing the appeal?

(4) Having regard to the submissions made to the Full Court, did the Full Court err in refusing to admit the additional documentary evidence in the fifth inventory of productions for the second respondent?

(5) Having regard to the submissions made to the Full Court, did the Full Court err in refusing to admit the additional documentary evidence in the fifth inventory of productions for the respondent?

[63] The alleged errors presented in support of the requisition can be summarised as follows. The Full Court erred in not evaluating the evidence for itself. It should have reached its own conclusion on the evidence and thereby determined whether the Divisional Court erred in fact or law. As it was, the Full Court asked itself whether there was sufficient evidence to support the conclusion reached by the Divisional Court. That was the wrong approach. Had the Full Court evaluated the evidence it would have decided that the White Well Park was not part of croft 47, failing which that Ms Jardine had failed to discharge the burden of proof resting upon her. In addition the Full Court erred when it accepted the Divisional Court's acceptance of the Inland Revenue map over the acreages shown in the estate rent book. The Divisional Court was not entitled to reject the rent book as the best evidence of the extent of the croft. The Full Court should have held that the rent book be preferred, having regard to the evidence relating to the 1891 rent application, 1927 rent review, the 1945 grazing regulations, the 1947 rent appeal and the valuation rolls. No reasonable court having regard to all the evidence could properly conclude that the White Well Park was part of croft 47. There was no evidence to explain a wider occupation of the common grazings by the crofters. In any event, additional evidence should have been allowed. It was unreasonable to reject items 1 - 5 of the said evidence. Items 6 - 8 were strongly supportive evidence as to the accuracy of the entry in the rent book relating to croft 47.

[64] Under section 1(7) of the 1993 Act the Court of Session can consider only questions of law. A preliminary issue was raised by the respondent as to whether this court has jurisdiction to address what were said to be issues of fact or evidence, not questions of law. On behalf of the appellant, Sir Crispin Agnew of Lochnaw Q.C. explained the appeal on a similar basis to that commonly arising in applications for judicial review, namely that, having regard to the evidence, no reasonable court could have come to the decisions reached by the Divisional and Full Courts. It follows that this sets the context for this Court's consideration of the issues in the case. It was readily accepted that a high hurdle had been set, but counsel contended that it could be cleared. Given that the appeal concerns issues of fact which fall within the ambit of the expert knowledge of the Land Court as a specialist tribunal, I have reservations as to whether it falls within the jurisdiction of the Court of Session under section 1(7) of the 1993 Act. However this question will only become critical if it appears that the Courts below did reach unreasonable decisions. I therefore turn to consider the merits of the case as presented on behalf of the appellant.

The decision of the Divisional Court

[65] It is appropriate to set out the decision of the Divisional Court in some detail. An 8 day proof was heard in tranches spanning a period of nearly 3 months. In addition the Court undertook a comprehensive site inspection. Mr Murray relied heavily on the declared acreages of the croft in estate documentation and in Crofters Commission and Land Court records and processes as being determinative of the matter. Ms Jardine sought to show that those records did not disclose the whole story and that, in particular, documentary evidence of occupancy relating to a survey carried out by the valuation office for the Inland Revenue in around 1910 to 1915 was to be regarded as the best evidence of the extent of 47 Dalhalvaig in 1886. The Divisional Court agreed with Ms Jardine's approach. There had never been any hint that current shareholders in the township were of the view that the Park was anything other than part of the inbye land of the croft. Resolution of the issues had not proved straightforward. It was accepted by both parties that the field now known as the White Well Park is either croft land, common grazing or a mixture of the two. To whatever extent, if any, it is croft land, it was not disputed that that would be as part of 47 Dalhalvaig. No one piece of evidence on its own was conclusive of the matter. Fundamentally the difference between the parties is that Mr Murray insists that virtually all of the crofts in the township, including 47 Dalhalvaig, lie to the west of the public road which runs through the village. The land to the east, with a few exceptions, is, in his view, common grazing. On the other hand, Ms Jardine would have it that not only is all the land to the west of the road occupied by crofts, but also a considerable area to the east.

[66] The land on both sides of the road had been individually occupied by crofters and landholders in the township - effectively as part of their holdings - since at least 1909. Mr Murray occupies the disputed subjects. He and his family have done so for a considerable period. He contended that such occupancy is "unofficial", and that the true legal extent of the crofts in the township falls to be determined on the basis of certain early estate and other documentation, which, in the case of 47 Dalhalvaig, indicated that it extends to eleven acres, although the occupancy of the croft for at least 100 years had been in excess of double that figure. It was submitted that the additional area of occupation is truly common grazings. Ms Jardine contended that the early estate and other documentation relied on by the appellant is not reliable as respects determination of the extent of her croft - or indeed of other crofts in the area. Evidence of occupancy since the early days of crofting demonstrated that it is properly based on the original grant by the landlord. The Divisional Court expressed the view that

"Where there is no written lease or clear description of the subjects let, we have come to the view that evidence of occupancy at a time close to the introduction of the crofting legislation, combined with other contemporaneous estate documentation which is otherwise consistent with that occupancy, is the best evidence upon which to base our decision."

[67] The Divisional Court set about attempting to establish, having regard to all the relevant evidence, how the land was occupied at 1886 and the basis of that occupancy. It examined the records of the Duke of Sutherland's estate and of formal procedures at or around that time to ascertain whether they were reliable as to the stated extent of crofts in the Dalhalvaig area. It concluded that the estate records are generally accurate and reliable as to what they set out to record. The problem is that, absent a definitive estate map, they are incomplete.

[68] At the outset the Divisional Court summarised its decision. It said that the disputed subjects had been under crofting tenure since 1886. The estate rent book did not disclose the full extent of the crofts in the Dalhalvaig area at the time of the passing of the Crofters Holdings (Scotland) Act 1886. In the absence of a definitive map or description, the full extent of crofts in terms of total acreage is therefore not documented in the estate records. The Inland Revenue map and the working estate map are largely consistent with each other and with the rent book in all other respects apart from the extent of crofts. The Court's summary of its decision continued to the effect that the Inland Revenue map (and associated field data sheets) can be regarded as the most reliable evidence as to occupied extent as at 1909. That is supported by the working estate map which appears to have been annotated at around the same time. Such occupancy occurred during a period when the Duke of Sutherland was still landlord. At that time the estate office had staff continuously on the ground collecting and collating detailed information about the tenants and the leased land. That data was regularly recorded in the rent book. The Court considered it "highly unlikely" that the extent of occupancy of land from Achiemore to the north to Croick at the south - as evidenced by these maps and almost universally in excess of the estate's recorded acreage - would have been permitted without comment, had it not been accepted as part of the relevant crofts by all those with an interest. All other formal records which state an area for individual crofts have been based on the figures contained in the rent book (or other estate records founded on the same figures) and simply repeated on each occasion when it was necessary for an entry as to extent to be made. In the absence of a definitive map or a definitive recorded extent, the Court concluded that the best evidence of the rights in or over the disputed land is its occupancy in or around 1909 as shown by the Inland Revenue map. On that basis, to such extent as the disputed subjects shown hatched black on production 1 lie within the area shown edged in red on the Inland Revenue plan, production 26 and labelled "457 (Part of)" then they are part of the croft land of the holding known as croft 47 Dalhalvaig and in the tenancy of the applicant.

[69] The Divisional Court explained that in the final analysis very little of the oral evidence related to relevant facts. It discussed the oral evidence. However the essence of the decision was explained in subsequent paragraphs. The primary question for determination was to identify the person with rights in or over the disputed subjects as at the passing of the 1886 Act. This was a far from easy task in the absence of any definitive map or description of the Dalhalvaig crofts as originally let. The estate records, and primarily the rent book, provided acreages and some idea of the location of the crofts and of the arable land within them. Evidence of occupancy of land, while not determinative, can be evidentially important to the determination of the status of the land. The Court was of the view that the evidence of early occupation provided a better guide as to the croft boundaries and as to measured extent than the rent book and area figures derived from it.

"[52] We have direct evidence of occupancy in the period since around 1950. By virtue of the Inland Revenue material, we have what we consider to be reliable documentary evidence as to occupancy in around 1909. That occupancy position is not entirely in accord with the more recent position, but the differences, though significant, are not major. What is clear is that there has been individual occupancy throughout the township by crofters/landholders, not only of land below or to the west of the public road, but also to the east of it over a long period. The major difference between the two parties here is not as to actual occupancy, as such, but as to the probity of that occupancy.

[53] If the Duke of Sutherland's rent book is to be determinative of the extent of Dalhalvaig crofts - as Mr Murray would have it - then it is not possible to reconcile the evidence of current or previous occupancy with that extent. In short, if the rent book is correct as to extent, then the current and previous individual occupancy of land in and around Dalhalvaig is to a significant degree not founded on any right based on the original lease which came to be under crofting tenure. In the terms often adopted during the hearing, it is 'unofficial'.

[54] Despite cogent argument to the contrary by Mr Murchison, we have come to the view that the rent book and other documentation which we find has been derived from it does not properly record the true extent of 47 Dalhalvaig, nor of the crofts which were examined in the course of evidence and submission. Because of the significant and widespread discrepancy between the rent book extent and the occupational extent, we have been forced to examine in some detail the basis of that occupancy. Although recent occupancy must obviously have a basis, we are satisfied that when looking for evidence of what might be called 'official' occupancy, the better evidence is that of occupancy closer to the period when the crofting legislation was first enacted."

[70] The Divisional Court considered the evidence as to early occupation and the basis thereof. Emphasis was placed upon the Inland Revenue material. Though founded on occupancy as at April 1909, the Court was satisfied that it was based on the tenancy agreement between the landlord and tenant as at 1886.

"[57] When we have the same landlord and one who keeps detailed records of matters relevant to his various let subjects on the one hand and tenants who have directly succeeded to their tenancy from parents, then it seems to us that a gap of 23 years assumes a lesser significance. In short, we are satisfied that on a balance of probabilities the occupational extent by the tenants of the various crofts as evidenced by the Inland Revenue Survey was synonymous with the extent of the original grant by the landlord..."

"[59] Mr Murchison starts from the premise that the disputed land was common grazings both before and after the passing of the 1886 Act. We have no difficulty with his submission that with effect from 1886 the shares in the common grazing held by the various crofters effectively became part of the individual crofts. The right to share in the grazing is indeed a right that pertains to the tenancy of the croft itself. With effect from 1886, the common grazings was effectively statutorily protected. But if it was generally recognised by the local community - including the estate's omnipresent representatives on the ground - that land was subject to common rights of grazing, then it is most unlikely that an individual crofter would 'get away with' extensive enclosure or exclusive occupancy of it or that the landlord would permit that to happen knowingly to the detriment of his other tenants..."

"[61] The main point of course is that, if the land is or was common grazing, then any enlargement of 47 Dalhalvaig by the addition of the land of the White Well Park to the croft would have resulted in removal of rights from other shareholders. That could not have been properly effected without formal process and documentation. There is of course no such documentation..."

[71] The Divisional Court set out in some detail the reasons for its view that the rent book and Crofters Commission figures for acreage do not represent the full extent of the croft land of any of the crofts examined in the case. The Court reached the view that the rent book only recorded the arable areas together with associated areas of outrun immediately contiguous with those arable areas, or at least contained within some defined feature. The Court was impressed with the rent book as being an accurate record of the matters intended to be set down, but it did not purport to record the boundaries or full extent of the crofts. In so far as Mr Murray prayed in aid the description of the rent book as "being a model", it was important to keep in mind the premise upon which that description was made.

[72] The Divisional Court considered in detail the various Crofters Commission and Land Court cases relied upon by Mr Murray. Ultimately it preferred the evidence of the Inland Revenue material "when regard is had to how completely it fits in with other contemporaneous evidence" (para 144). In my view this was the nub of the decision. In the written submissions presented in support of the special case, it is submitted that this decision is "perverse". The Court noted that the Inland Revenue survey set out to obtain the best evidence of "official" occupational extent as at April 1909. It considered it inconceivable that the Duke of Sutherland's estate team was not consulted. The entries in the field book were consistent with the 1909 valuation rolls, which themselves were consistent with the rent book in so far as owner, occupier, rent and name of property were concerned.

"[149] What seems clear is that those undertaking the Inland Revenue work and preparing the map had been led to think that approximately two thirds of what is now enclosed as the White Well Park lay within croft 47, with the rest, apparently, forming part of the common grazings. Whatever the basis of their deliberations, they had come to the view that croft 47 was a recognisable unit for valuation purposes and that it extended to that land shown outlined in red and labelled '457' on the map, productions 26 and 74.

[150] We accept that part of such outline does not follow any original line on the base map and critically that this happens to be in the area presently under discussion. But our own inspection and the evidence we heard has satisfied us that there are relevant features on the ground by way of wet and dry ditches and turf/stone dykes which are still in evidence today. Those features do not now extend to the whole of the eastern line as shown to run between the cottars' area at the north and the White Well at the south, but there are sufficient remnants for us to conclude that the Inland Revenue line was not an entirely random one.

[151] Everything points to the Inland Revenue/Valuation Office having undertaken their task professionally. The Inland Revenue material is the best evidence we have of occupancy as at 1909 or so. We think it is good evidence. As far as we can see it is entirely consistent with other documentary material - other than in relation to the stated extent of each holding. Had there been only one or two holdings where the occupied extent in or around 1909 significantly exceeded the extent stated in the rent book and other documents derived from that figure, then we might have been satisfied that such occupancy of additional land was somehow 'unofficial'.

[152] But where, as here, we have the occupied extent of every single holding in the township which we have looked at in evidence significantly exceeding the rent book figure and that at a time when the Duke of Sutherland's staff were actively involved with this part of the estate, we have come to the view that the occupancy depicted on the Inland Revenue maps was 'official'. The land so occupied was, we think, croft land and had been so since 1886. It follows therefore, as will be seen, that the White Well Park was partly croft land under the tenancy of George Gunn at the time and partly common grazings."

[73] The Divisional Court then considered the working estate map which was lodged at the start of the final diet of the proof.

"[155] Taken on its own it seems to us that the author(s) - whose entries were not necessarily made in 1889 (as Mr Robb might have it) and not necessarily all at the same time - was of the view that the various crofts did have as part of their holdings significant areas of land above the road. Indeed there is a very close correlation between the extent of the holdings on this document and that on the Inland Revenue maps...."

"[157] In so far as it contains question marks in pencil, it probably has to be regarded as a work in progress. However we think it somewhat disingenuous of Mr Murchison to suggest that it does not show, nor was it intended to show, the croft boundaries. On any natural interpretation of it, it is clearly intended to show boundaries - otherwise why label all the annotated land with the number of the relevant croft? And here we note that such numbering is entirely in accord with that on the Inland Revenue material and the rent book as regards both croft and crofter in respect of the crofts which we looked at during the hearing."

"[159] ...On balance of probabilities, what we think is that it is a Sutherland estate working map .... If that is so, then the latest time in which it is likely to have been prepared was prior to the sale in 1919. We have little doubt that the Duke of Sutherland's estate office instructed or undertook its preparation. The rent book would have been available at that time. So here we have a map, prepared in the relatively early days of crofting; a map which corroborates to a large degree the occupancy as shown on the Inland Revenue map at the same period; and yet it is not to be taken to represent croft boundaries - simply because the acreage represented does not tie up with the acreage recorded in the rent book.

[160] It may, we agree, be a working map, but it contains so much detail which is entirely consistent with the rent book that we are simply not prepared to dismiss it in the manner suggested by the second respondent ..."

"[165] For present purposes we think, even if it is only a draft or work in progress, it can properly be taken to be an indication by the Duke of Sutherland's estate as to the croft boundaries during the currency of his ownership."

[74] The Divisional Court then considered in detail the evidence relating to crofts and other feus in the area. The Court commented:

"[237] It seems to us that until recently everyone in the township has 'run with' the present physical occupancy arrangements 'in living memory'. The only attempt to show that the land is part of the common grazings has come very recently from the Murrays."

Later the Court observed that at the outset of the case Mr Murray's primary position was that the land was part of his croft.

[75] When summarising its decision the Divisional Court said:

"[256] The main point is that we have satisfied ourselves, as outlined above, that the extent of the crofts let by the Duke of Sutherland in the Dalhalvaig area as at 1886 was significantly greater than the 'estimated extent' recorded in the rent book. The effect of that is that as long as there is no other conflict in the contemporaneous material - and we have found none - we are free to look to other evidence in our attempt to investigate the true extent and boundaries of crofts in the area - in this case 47 and 51 Dalhalvaig."

The Court decided that the Inland Revenue map was determinative of legal extent as well as occupied extent at the relevant time. The area had been effectively occupied by the Murrays from about the mid 1950's onwards:

"[259] But it is strictly irrelevant how the occupancy came about, for even if it started on some proper footing - even if it had started on the basis of a sub-let, amicable agreement with Mr Gunn or Mr Mackay, or as a result of poor fencing - the present occupancy is accepted as not being on the basis of any legal entitlement. It is unnecessary to say much more about recent occupancy..."

Emphasis was placed upon the close correlation between the working estate map and the Inland Revenue map

"[263] It is possible that neighbouring crofters might not have objected to enclosure of small areas of common grazings adjacent to croft outrun. On the basis of Mr Pryce's evidence and our experience of crofting matters generally, we doubt very much if the ground officers and neighbours would have allowed any significant enclosure outwith the recognised boundary of the croft. It is within our knowledge that in the early crofting period, large parts of crofts - and particularly of outrun - were not enclosed. There are many examples of layouts such as Dalhalvaig and surrounding areas where there is a band of mainly arable ground - perhaps next to the more fertile plains of a river. These areas were often enclosed. It was common too to have an area of rough pasture ground (outrun) between the arable and the head or hill dyke. Although the outrun was individually allocated to crofts and each crofter knew precisely the boundaries on the ground, it was frequently not enclosed by any form of dyke, fence or ditch."

"[267] ... But to have a whole township apparently occupying of the order of at least 30% more land than they were entitled to in the face of scrutiny by neighbouring tenants and their families and by the landlord's ground officers who clearly made it their business to know intricate details of those tenants, their families and their holdings, persuades us that such occupancy or apparent enlargement was not unofficial.

[268] So we have concluded generally that we can rely on the Inland Revenue map and Inland Revenue data, which, when combined with all the other evidence of the earlier period - 1886 to 1915 - leads us to the view that the rent book alone is not determinative of extent. The evidence of occupancy in that early period is of much more assistance to us than any evidence of recent events. The key finding therefore is that the area known as '457 Part of' on the Inland Revenue map was actually under the occupation of Mr Gunn as at 1909 and that it is a reasonable inference that it was part of his holding.

[269] There was, accordingly, no 'unofficial taking in' of land. It was a case of enclosure of previously unenclosed outrun of the crofts. Although Sandy Murray's evidence was that the acreage discrepancies largely corresponded with the areas above the road on the holdings we looked at, it is clear to us on closer examination, that even the areas below the road were often apparently larger than recorded in the rent book. Mr Murchison repeatedly submitted that 'we know that the acreage of the croft is correctly stated in 1891' and that 'all the land above the road is common grazing' and so all other contrary evidence falls to be disregarded. It only falls to be disregarded on the one premise - which is that the rent book is right as to extent.

[270] Of course there is the very powerful contrary position put by Mr Murchison in relation to the various rent cases. We have given our views on those earlier. In summary, we have found that they did not determine the extent or boundaries of this or any other croft. We do not know the scope of the inspections carried out by those charged with renting the crofts. It is not clear whether they inspected all of the land or attempted to access acreages - particularly of the outrun. Our attention was not drawn to other contemporary material suggesting that, in other crofting townships, there was any discussion as to the relationship between the acreage entered in the Schedule by the landlord applicant and the physical acreage on the ground - which may or may not have been fully pointed out or inspected."

The Divisional Court's decision was accompanied by an appendix consisting of a lengthy and detailed note of the evidence and submissions at the hearing.

The appeal to the Full Court

[76] An appeal was marked to the Full Court on the basis that the Divisional Court

"erred in fact and law in holding, on the basis of the material before it, that the applicant had discharged the onus of showing that the White Well Park or some identifiable part of it had been ...included in the...original grant [of tenancy of croft 47]."

The Full Court recognised the conflict "at the heart of the case", namely between some of the estate records as to the acreages of the Dalhalvaig crofts and the land historically possessed by the crofters. The question at the centre of the appeal was the submission that there was no proper evidential basis for the Divisional Court's decision. The Full Court narrated in detail the submissions made on behalf of both parties. It agreed with the submission on behalf of the appellant that the court was concerned with the proper inference to be drawn from proved facts in which an appellate court is generally in as good a position to evaluate the evidence as the court of first instance. The question was whether the Divisional Court erred in fact and/or law. Two questions arose:

(1) Was there sufficient evidence for the Divisional Court's conclusion?

(2) If yes, it would be necessary to examine how the Divisional Court dealt with the evidence and whether it was given appropriate weight.

It was not disputed that the Divisional Court was entitled to conclude that as at April 1909 the tenant of croft 47 occupied the larger area. In any event the Full Court was of the view that the Divisional Court was justified in so concluding. The Full Court considered (for the reasons given) that it was a legitimate inference that the estate was consulted in the course of the Inland Revenue's exercise. The Divisional Court was entitled to conclude that the possession was known to the estate and that it was not contentious (again reasons for this view are set out by the Full Court).

[77] The Court was satisfied that the Divisional Court was entitled to infer that possession as at 1909 was co-extensive with possession at the time of the original grant, because there was no evidence that anything had changed in the meantime. There was no evidence of acquisition of land from common grazings by the crofters at that time, and therefore there was no basis upon which the Divisional Court could have held that that happened. In its Note the Full Court stated:

"[95] ...The suggestion that there was at some point a wholesale acquisition by crofters, from one end of the township to the other, of land from the common grazings and that that is what accounts for the discrepancy between stated acreages and the rent book and other documentation and acreages occupied, while suggested by some of the witnesses, has no proper basis on the evidence. Nor is there any evidence of that having happened in relation to this particular croft.

[96] We are likewise satisfied that the Divisional Court was entitled to hold that such occupancy was as part of the croft. Under reference to what we have just said about the lack of evidence as to acquisition of land on any other basis, that was a legitimate conclusion, indeed the only conclusion, for the Court to come to. As time goes by, less and less will evidence of the position in 1886 be available to this Court in cases involving questions as to whether land is subject to crofting or whether land is part of one croft rather than another. The Court has to decide cases on such evidence as is available and we are satisfied that there was a sufficiency of evidence available to the Divisional Court on this occasion for the conclusion to which it came, and that without any resort to speculation, permissible or otherwise.

The [Divisional] Court's conclusion can be summed up thus:

'It is proved that this land was occupied by the tenant of 47 Dalhalvaig in 1909. No other basis is suggested for that occupancy other than that the land was part of 47 Dalhalvaig. There is no evidence to suggest that the position, as to either the extent of ground occupied or the basis upon which it was occupied, had changed since 1886. Therefore this land was probably occupied as part of the croft 47 Dalhalvaig in 1886.'

We find no fault with that reasoning and we are satisfied that there was a sufficiency of evidence for the Court's conclusion to that effect."

[78] The Full Court considered the competing evidence. It discussed the rent book and found no fault with the Divisional Court's approach. The Divisional Court preferred the evidence of the maps rather than the rent book and the other material relied upon by the appellant. It considered that the evidence as to early occupancy was a better guide to croft boundaries. The Full Court asked itself whether the Divisional Court was entitled to reach that conclusion. Turning to the material relied upon by the appellant the Full Court looked at each process in turn on the basis that the discrepancy between declared acreage and occupied acreage existed as at 1891 and all points thereafter. At paragraph 118 the Full Court referred to the "well known matter of crofting history" that in 1891 the Crofters Commission was under huge pressure for its services in the fixing of fair rents. The Full Court agreed with the Divisional Court that there was no element of the Crofters Commission decision which could be taken as even commenting on the boundaries or extent of any croft, far less determining either. At paragraph 120 the Full Court came to its own conclusions with regard to the material regarding Alexander Gunn's appeal, which was "suggestive of more extensive areas of land having been let to crofters, and the focus of the rent book, when it came to be drawn up, being on such parts of the land let as the crofters had rendered arable". In short Mr Gunn's focus was on the arable land, not the croft as a whole. To my mind this is a good example of the Full Court examining the relevant material independently and in some detail, and expressing its own view. Whether it was bound to go into the evidence in such detail is another matter, but, in my opinion, there is no foundation for any suggestion that the Full Court did no more than "rubber stamp" the decision below.

[79] The Full Court considered that the Divisional Court was correct to view George Gunn's 1927 application as focusing on flooding which concerned only a limited part of his croft. With regard to the 1945 application the Divisional Court gave "telling reasons" for taking the view that the reference to 11 acres was incorrect. At paragraph [124] the Full Court gives its own view on the 1956 returns to the Crofters Commission. By way of summary of this chapter of the evidence the Full Court stated:

"[126] The result is that, whereas we were initially impressed by the apparent force of Mr Mutchison's submission as to (a) the strength and clarity of this evidence; (b) the Divisional Court's failure to attach an appropriate weight to it; and (c) the apparently incongruous results produced by superimposing, so to speak, the Court's conclusion on that evidence, on closer examination of how the Court dealt with these matters we find no fault with it and we see no basis for disturbing it. On the contrary the Divisional Court's treatment of this chapter of evidence is characterised by the same painstakingly careful and objective analysis as characterises the whole of its judgement."

The Full Court continued:

"[127] Mr Murchison, of course, had to concentrate on those aspects of the evidence to which, he considered, the Divisional Court paid too little attention. But, as Mr Robb reminded us, the Divisional Court had to deal with the case on the basis of the whole evidence. That included the evidence as to occupancy as well as the evidence upon which the appellant relies. Although it found an hypothesis which allowed it to square the circle and reconcile the two apparently opposed bodies of evidence, the Divisional Court also expressed a clear preference as between them.

[128] The choice with which it was presented was one between documentary evidence to which no one can now speak and which contains insufficient detail to identify the croft 'on the ground', on the one hand, and, on the other, evidence of uncontentious occupancy going back a century and taking us to within 23 years of the passing of the 1886 Act, and which is explained in the evidence on no other basis than that the land was let as part of the croft. We consider that the Divisional Court did not err in preferring the latter.

[129] We are therefore unable to detect any error in fact or law in the approach taken by the Divisional Court in reaching its conclusion and the appeal is therefore refused."

Discussion and decision

[80] This Special Case is brought under section 1(7) of the Scottish Land Court Act 1993. The appellant can succeed only if the Full Court has erred in law. The only basis upon which that was argued by counsel was that the decision was unreasonable, or to use the language frequently adopted in the written submissions, "perverse", or as also suggested, "myopic". An analogy was drawn with Wednesbury unreasonableness in judicial review proceedings. This Court was encouraged to evaluate the evidence for itself and to form its own view on the various issues of fact and law. However the Court of Session can interfere only on issues of law. It is not a question of whether this Court agrees or disagrees with the decisions taken in the Land Court, but whether there is a material legal flaw in their approach. Furthermore, unlike the Land Court, the Court of Session is not an expert tribunal in respect of the matters under consideration, and so should be careful to avoid trespassing on the Land Court's jurisdiction.

[81] All that said, the Court of Session can interfere if, having regard to the admitted or proven facts, it can be concluded that no reasonable decision-maker could have proceeded in the manner of the Divisional and Full Courts. In Malcolm v McDougall 1916 SC 283, when considering a stated case from the Land Court, Lord Johnston referred to authority which established that whether a finding in fact could be reasonably supported upon the evidence adduced was a question of law (page 293). I have rehearsed the reasoning of the Divisional and Full Courts in some detail. I can detect no perversity, unreasonableness or irrationality in their decisions. Plainly there was much that could be, and was, said on both sides of the case. No doubt a reasonable decision-maker could have decided the case in favour of the appellant, but that is not the relevant test at this stage. Both the Divisional and Full Courts were impressed by the Inland Revenue field data and map, and by the general concurrence with the boundaries of the various crofts as shown on the working estate map, all in the early years of the last century. It was decided that the estate must have been aware of the Inland Revenue work and of the extent of the occupation of the crofters on the ground. Exercising their specialist knowledge, the Courts below concluded that it was highly unlikely that there would be such widespread unofficial occupancy of common grazings so soon after the 1886 Act without formal documentation. It was possible to reconcile all of the available information on the basis that the rent book acreages related primarily to the arable areas, plus immediately associated contiguous rough pasture (or outrun). In any event, the material relied upon by Mr Murray did not purport to record the location, boundaries or full extent of the crofts. Until the present case, no one had suggested that the crofters were wrongly occupying common grazing land. Mr Murray now accepted that his occupancy of the disputed land had no legal foundation. The view was taken that the evidence as to occupancy in the early part of the last century was more important. The Divisional Court expressly relied upon its own knowledge of the early crofting period, for example in respect of crofts including allocated but, at least initially, unenclosed rough pasture ground. It also had the significant benefit of a comprehensive site inspection. The appellant's starting and finishing premise was that the acreage in the rent book was correct. The difficulty for him is that the rent book acreage was contradicted by other evidence heard by the Divisional Court and reviewed by the Full Court.

[82] Fundamentally the case is a contest between two sets of historical records, some of which point to an 11 acre croft, and others which support a 25 acre croft, the latter including part of the White Well Park. Neither set is conclusive. It was the evidence of early occupancy of the larger areas across the township, combined with the unlikelihood of this being unofficial, which persuaded the Land Court that the Inland Revenue and the working estate maps should be preferred. Only they purported to record the boundaries of the holdings. As specialist tribunals the Courts below identified the balance of probabilities as favouring the view that the early occupation was reflective of the original grants. On the evidence it seems to me that they were fully entitled to do so.

[83] The appellant's submission to this Court in effect categorises the Full Court's decision as a rubber stamping exercise. I would reject this criticism. The Full Court carried out a careful review and analysis of the Divisional Court's judgment, with which it could find no fault. It is apparent that the Full Court's decision was reached after a careful analysis of the underlying evidence. I am impressed by the care and thoroughness of both Courts' consideration of the evidence and by the clarity and comprehensive nature of their reasoning in respect of the submissions in fact and law. As in the Courts below, the appellant's submission to this Court proceeds on the proposition that the rent book must be treated as accurate as to the acreage of croft 47, and that it and the later material relied upon is so compelling as to present an unanswerable case. If one concentrated only on the evidence relied upon by the appellant, that approach would be correct. However, the Courts below required to have regard to all the evidence, including the historical records which contradicted the material relied upon by the appellant. Looking at all the evidence in the round, without any preconception as to the status of the rent book, it is apparent that there is no merit in the submission that there was only one reasonable or sensible outcome to the case. Sir Crispin described the appellant's position as "obviously right". That was not obvious to the Divisional Court, nor to the Full Court. It is not obvious to me. There was a considerable body of evidence to the contrary which the Courts below were fully entitled to prefer for all the reasons given in their judgments. In the result it is not necessary to resolve the preliminary issue as to jurisdiction raised by the respondent.

[84] So far as the submissions relating to additional evidence are concerned, I reject them for the reasons given by the Full Court. I would answer all the questions posed in the Special Case in the negative.