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of the high prerogative doctrine* of the English law, which, to the honour of our lawyers, never prevailed to the same absurd and unjust extent which it did, and in some points still does, in England, and we are not aware of any authority in Scotch decisions to the effect that Crown grants are to be construed differently from those of subjects.
We now pass from the class of bounding to that of descriptive titles, in which the lands adjacent to the seashore, whether erected into a barony or not, are held with a clause of parts and pertinents, and are de facto bounded by the sea.
The recent decision in the Ardgour case (Lord Advocate v. Maclean, ut supra) places beyond controversy the proposition that a barony title, combined with prescriptive possession, gives its holder a right to the foreshore in a question with the Crown, and it also disposes of the fallacy that possession of the shore for every purpose for which it is adapted, can be ascribed to a collection of servitudes; but a review of the decisions, both in earlier and more recent times, will support propositions much wider than these. Of the older cases it is sufficient to refer to three or four. In them the question of property generally arose indirectly, the immediate object of dispute being wreck and ware, sand, gravel, or other product of the shore.
In the case of the Earl of Morton v. Covingtree, 20th June 1760, M. 13,528, the Earl claimed, in virtue of a Crown charter of the Earldom of Orkney, with pertinents as well by sea as by land (wreck and ware being specially mentioned), the wreck and ware on the shore adjacent to the lands of Newark, which were held by Mr Covingtree from the Crown, with a clause of pertiThe possession, so far as regarded the ware, was divided. Mr Covingtree's title, which, it is to be observed, was not a barony one, was earlier, and he pleaded that the seashore, “though still common for the uses of navigation, is understood to be inter regalia, and the property thereof may be given by the Crown to a subject." "The Earl's charter (we still quote from the pleading) contains some lands bounded by the sea, and so far he may have right to the shores, but as Newark has a grant from the Crown not only of his lands lying next to the sea, but of the wreck and ware on the shores thereof he has thereby an exclusive title to the shores adjacent to his lands." Effect was given
* Broom's Legal Maxims, ch. ii. Allen's Inquiry into the Rise and Growth of the Royal Prerogative.
to this claim of exclusive property. "The Lords found that the Earl of Morton has no right to cut ware or tang for making kelp on the rocks or shores of Newark and Air." The prior case of Bruce
v. Rashichill, in 1714, M. 9342, related to sea-greens, which term, in its usual acceptation, is applied not to the shore proper, which every tide covers, but to those reaches of land behind the shore which are covered only at high tides. It is noteworthy, however, that the reporter Bruce mentions that these greens were, "for the most part, every tide, and in spring and high tides entirely overflown," so that they seem to have consisted both of foreshore and sea-green. In this view the decision, which found that they were not inter regalia, and were not established as a separate feu by Charter of Novodamus, in which they were granted nominatim "unâ cum terris vulgo, the haill sea-greens," but that sea-greens may belong to the neighbouring heritors as part and pertinent of their lands, has evidently a direct bearing upon the question under discussion. Erskine's comment upon this decision-" by our constant practice proprietors who border on the sea enclose as their own property grounds far within the sea-mark," (Inst. II., 6, 17,) shows that he understood it to apply to the foreshore. This passage is, besides, the best evidence of the understanding of landowners and lawyers at its date* relative to the property in the shore. The supposition that Erskine is here stating a practice contrary to law is unreasonable. By far the most important case, however, prior to modern decision is Innes v. Downie, 27th May 1807, Hume 552, in which a bank of shelly sand, contiguous to the shore, and covered by the sea in ordinary tides, was found not to be inter regalia, and to belong as a pertinent to the adjacent lands. The lands here were an integral part of a barony, and although a portion of it had been sold would have retained the privileges (see on this point the opinions of Lords Hermand and Bannatyne) of a barony, and so have carried the bank even if it had been amongst the lesser regalia; but the opinion of the President, Sir Islay Campbell, and Hume's rubric, show distinctly that that was not the ground of judgment. "The question," the President remarked, “is, is this a regale, or a common right? I think not. Property of land adjacent to a heritor's shore is not a regale. Rocks with sea-weed and the like are pertinents of the adjacent property without a royal grant. This was found so here some years ago in a ques
VOL XL. NO. CXXII.-FEBRUARY 1867.
tion between Lord M'Donald and the Laird of M'Leod as to a multitude of rocky islands near the shores of Skye. His property of the shore is subject to the risk of being impaired or destroyed by the sea; and, on the other hand, has the advantage of gaining on the sea alluvione, provided always he do not impede the use of navigation, which is the single restraint of his right." Not the slightest countenance is here given to the theory recently hazarded, that the shore is to be considered as an accessory of the sea rather than of the land; on the contrary, even the land beyond the proper shore gained by regress is treated as an accessory of the adjacent lands. This decision was recognised a few years later in Erskine v. Magistrates of Montrose, 7th Dec. 1819, Hume 558, where the same eminent judge spoke of the “ordinary right of an heritor on the shore to embank and gain on the lands." It was not necessary, however, to rest upon that right in this case, as the pursuer, Miss Erskine, had a special grant in her charter of the Sands in the Basin of Montrose, the right to dig bait in which was the subject of controversy. * In neither of these cases is any distinction drawn between barony and other titles.
We shall now turn to some of the most important modern decisions, which show that President Campbell's doctrine has been fully acknowledged by his successors. In Macalister v. Campbell, 7th Feb. 1837, 15 S., 490, a grant of lands on the sea-coast, (not erected into a barony) with parts and pertinents, of which the sea was de facto the boundary, was held to carry the sea-beach as part and pertinent, and to entitle the owner to exclude a neighbouring proprietor from gathering sand and kelp on it unless he could prove a prescriptive servitude entitling him to do so. Lord Gillies in his judgment observed—“It is said that the pursuer's titles don't describe his property as bounded by the sea. I cannot help thinking that this is of little consequence if de facto the sea is the boundary. Suppose a conveyance was taken to the island of Stronsay, and that it was not described as bounded by the sea in the same way as here, would the Court hold that the disponee
The effect of this charter was recently drawn in question for the second time in a case of interdict, in the Sheriff Court of Forfar, against persons who walked on the sands for the purpose of fowling. The decision of the Sheriff was in their favour. Had the case come before the Supreme Court, two interesting questions would have arisen-whether the shore of a land-locked saltwater bay is in exactly the same position as the seashore, and if so, what are the extent of the public uses of the shore?
had no right to the sea-coast? I imagine not, and I doubt if of the gentlemen of the west have a better title than the pursuer to this source of revenue."
The case of Paterson v. M. of Ailsa, 11th March 1846, 8 D., 752, was the converse of that last quoted. Paterson claimed, is one of the public, a right to gather sea-ware ex adverso of the Marquis's lands, and that without averring prescriptive possession. The Court unanimously repelled this claim. It is true this judgment was not based upon a right in the Marquis of property in the shore; but Lord Wood † and Lord Moncrieff expressed a clear opinion in favour of such a right, although they allow, as we have seen President Campbell also did, that it would be subject to the public uses. Lord Justice-Clerk Hope and Lord Medwyn do not give a distinct opinion on the point, regarding it as unnecessary to the decision of the cause. Lord Cockburn stands alone in this as in another case presently to be referred to, in the view that the shore, unless expressly granted, remains the property of the Crown, and is, so far as we are aware, the only Scotch judge whose authority can fairly be quoted in favour of the Crown claims. The decision in this case ruled Lord Saltoun v. Park, 24th Nov. 1857, 20 D., 89, where a declarator of exclusive right as against the public to gather sea-ware ex adverso of a barony de facto bounded by the sea, was sustained. Doubts, it is fair to add, were expressed by two judges (Cowan and Benholme) as to the pursuer's right of property in the shore. No effect, however, was given to these doubts in a subsequent case before the same Division of the Court, Nicol v. Blaikie, 23d Dec. 1859, 22 D., 335, and we must suppose them to have disappeared, as it was a case eminently fitted to draw them. out had they still existed. The pursuer, proprietor of the lands of Cairnrobin, described in his titles as bounded on the east by the German Ocean, brought a declarator and interdict against a neighbouring proprietor, who had entered on the shore ex adverso of these lands, and placed ring-bolts in the rocks between high and low water-mark for the purpose of salmon-fishing. The Court held that the pursuer had a good title to insist in the
+ In Lord Wood's note will be found the most thorough examination of all the authorities to be met with in the whole range of decisions.
The same remark applies to Colquhoun v. Paton, 17th June 1859, 21 D., 996, in which a proprietor was found entitled to interdict a steamboat company who attempted to land passengers on Sundays on a pier built partly on the foreshore adjacent to his land.
action, so far as directed against the defender's intrusion on his lands. The Lord Justice-Clerk (Inglis) in delivering the unanimous opinion of the Court, said-" Assuming the radical title of property to be inalienably vested in the Crown, the practical effect of conveying by a Crown Charter lands bounded by the sea is admitted by all. It gives the heritor the exclusive beneficial use and right of possession of the sea-shore between high and low water-mark, subject only to the primary and preferable public uses for securing which the property ex hypothesi remains vested in the Crown." We may venture to doubt whether the expression that the "title of property" remains vested in the Crown is happily chosen, unless by property is meant the paramount right of superiority which the Crown possesses over all the land in Scotland held by feudal tenure. The meaning of the passage, however, is quite clear; the only limitation of the heritor's right in the foreshore is the public uses of which the Crown is guardian: the “inalienable title of property vested in the Crown" is certainly not the right to alienate the shore now claimed by the Crown with so much eagerness that it has proceeded in many cases to alienate it before it was found to possess the right.
Before quitting the case-law it is proper to examine certain decisions and dicta which have been or may be referred to, as supporting the opposite view. It will, we think, be admitted that it would require strong authority to overthrow the consistent current of decisions in favour of the proprietor's right. Those quoted in favour of the Crown are few, far between, and easily susceptible of an interpretation agreeable to the view of the subject we are supporting. The two old cases quoted in Balfour's Sea Laws, under the heading "Anent the flude-mark,"* The King v. Laird of Seafield, 29th July 1500, and Town of Craill v. Meldrum, 24th May 1549, related rather to the extent of the public uses to which the shore was subject than to the right of property.
In the former the case of a special infeftment within the fludemark, to which we have shown an inclusive bounding charter is equivalent, is excepted from the proposition that the neighbouring heritor cannot prevent any of the lieges from winning stone and gravel from the shore; and the case of Macalister proves that a de facto sea boundary to lands held by descriptive title, with clause of pertinents, is now, whatever may have been the case at
• Balfour's Practicks, 626; also in Skene De Verborum Significatione, voce Ware