sea-shore, sea-flood, &c., but only a grant of lands with pertinents de No. 55. facto bounded by the sea. So that the alternative questions arise—(1) tions in regard to the shore, which it is unnecessary to specify, he says (sec. 642), In addition to the institutional writers who have now been referred to, many decided cases to the same effect were cited in argument to the Lord Ordinary, and amongst others the following: "The Magistrates of Culross v. the Earl of Dundonald, 15th June 1769, Mor. 12,810, where it was decided that a crown charter of lands described as bounded by the sea conveyed to the grantees the right to the beneficial occupancy of the shore, in preference to an after crown grant purporting specially to convey the Sea-shore as reserved crown property. "Innes v. Downie, 27th May 1807, Hume's Decisions, p. 552, where it was held that a bank of shelly-land contiguous to the sea-shore, and covered by the sea in ordinary tides, was not inter regalia, but a pertinent of the adjacent lands. The report of this case is particularly valuable for the opinion it contains of Lord President Ilay Campbell, to the effect that the shore with its adjuncts, such as sea-weed and the like, are not inter regalia in the sense of being inalienable, but must in the general case be held to belong to the proprietor of the adjacent lands as pertinents thereof without a royal grant, provided always he do not impede the uses of navigation, which is the single restraint of his right. "Campbell v. Brown, 18th November 1813, F.C., and Boucher and Others v. Crawford, 30th November 1814, F.C., where it was found that proprietors whose lands are described in their titles as bounded by the sea were entitled to gain ground therefrom so far as not inconsistent with the rights of the public. "M'Alister v. Campbell, 7th February 1837, 15 Sh. 490, where it was held that an infeftment in lands adjacent to the sea, with parts, pendicles, and pertinents,' was a good title, combined with an allegation of possession, to prevent encroachment on the shore by another for the purpose of taking away shells, sand, wrack, and ware, and whose plea that a party whose title did not contain an express grant of the shore, nor describe his lands as bounded by the sea, had not condescended on any title in virtue of which he could prescribe a right to the sea-shore, was repelled. This case is also valuable for the explicit statement of Lord Gillies, to the effect that the Court could not hold the shore to be reserved out of a crown grant wherever it was not expressly inserted in it,' but that, on the contrary, 'the conveyance of an estate which is notoriously bounded by the sea conveys the shore as effectually as if the words bounded by the sea were in the charter.' 6 "Patterson v. Marquis of Ailsa, 11th March 1846, 8 D. 752, where it was also held that the proprietor under crown titles of lands adjacent to the sea, although his titles did not contain any express grant of the sea-shore ex adverso Jan. 21, 1873. No. 55. Whether the fore-shore is necessarily carried by a barony title; and (2), Whether it can be deemed to be part of the land, and conveyed as such. Jan. 21, 1873. Agnew v. Lord Advocate. of his lands, or of wrack or ware, had a sufficient title to resist an action by another party having lands lying near but not adjacent to the sea-shore, concluding for right to gather wrack and ware thereon. In this case the Lord Ordinary (Wood), in the note to his judgment, which was unanimously adhered to by the Court, appears to have entered into a very full and discriminating examination and review of all the authorities and precedents up to that time bearing on the question determined in the present case, and shewed very conclusively, as the Lord Ordinary thinks, that the result here arrived at is right. It is true that the Lord Justice-Clerk (Hope) in that case reserved his opinion how far the Marquis of Ailsa, who obtained the judgment, was to be held as having a full proprietary right to the shore, or merely to the sand, wrack, and ware; but the Lord Ordinary must own that, looking at the opinions of all the Judges in the case, as well as the prior decisions, he is unable to see any sufficient ground for drawing any such distinction; and, at any rate, he thinks that the proof in the present case, which has been already noticed, is amply sufficient to remove all ground for the distinction, supposing that room for it might otherwise be considered to exist. "Lord Saltoun v. Park and Others, 24th November 1857, 20 D. 89, where it was held that a proprietor of lands forming a barony bounded by the sea, although not mentioned as the boundary, had right to the sea-weed and ware, and that an averment on the part of farmers and residents in different parishes, that they and the public had been in use to take the sea-ware and sand for upwards of forty years was not relevant. The Lord Ordinary (Ardmillan) in this case in terminis decided, in accordance with the opinion expressed by him in the note to his interlocutor, that a royal grant to lands, whether erected into a barony or not, and whether stated to be bounded by the sea or not, if de facto bounded by the sea, comprehends the shore with its adjuncts of sea-weed, &c. And although the Court, under a reclaiming note, limited the judgment to a right to sea-weed and ware cast on the shore, which was all that was necessary for the case, they expressed no opinion to the effect that the Lord Ordinary' findings were in themselves erroneous or ill-founded in law. "There comes next the judgment of Lord Jerviswoode in the case of The Lord Advocate v. Maclean of Ardgour, 23d May 1866, 38 Jurist, 584, and 2 Scottish Law Reporter, 25, where the very question now determined by the Lord Ordinary in the present case was directly raised as between the Crown and a subject, proprietor of lands adjacent to the sea-shore, and decided in favour of the latter. It is true that the judgment in that case is that of a single Judge only, not reviewed and affirmed by the Court; but it is also true that, although the decision was wholly adverse to the Crown, it was acquiesced in. Not only so, but the report in the Law Reporter bears that, although a reclaiming note was boxed for the Crown and sent to the roll, it was afterwards refused before it came out for advising, on a note being lodged for the Crown desiring that it should be so. There was in that case, as here, a proof of the state of the possession, and the Lord Ordinary held it to be entirely with the private party. But here also there has been a very full proof, the import of which the Lord Ordinary, for the reasons already given, holds to be with the pursuer, the private party. And, lastly, there is the recent case of Hunter v. the Lord Advocate and Others, 25th June 1869, 7 Macph. 899, where, although it was held not to be indispensably necessary to decide the question determined in the present case, yet the circumstances were such as to raise questions very closely approaching to it, and as to which, consequently, remarks fell from some of the Judges which are of value here. In particular, Lords Deas, Ardmillan, and Kinloch, as the Lord Ordinary reads their reported opinions, appear to have entertained and expressed views very much in accordance with the principle upon which the Lord Ordinary has proceeded in deciding the present case. Lord Kinloch (911) expressed himself as follows:-'I entertain a decided opinion, to the expression of which I think the parties entitled, that, according to our law, the sea-shore is Both of these questions are still open, though there are dicta both ways. No. 55. Jan. 21, 1873. Agnew v. Lord not in patrimonio principis more than are the adjacent lands. In legal theory, Advocate. the sovereign is proprietor of all lands to which no one else can shew a title. When the Crown gives off lands locally situate on the sea-shore I am of opinion that, whether the title declares the sea to be the boundary or not, there is thereby given off a right to the sea-shore as part and pertinent of the lands. The right is, and can only be granted subject to the public uses of the shore for navigation, fishing, passage, recreation, and the like. And to the effect of maintaining these uses there may theoretically be said to be a trust vested in the Crown.' "With such authority in the law of Scotland as that which has been now referred to the Lord Ordinary does not see how he could allow himself to be much influenced by the partial quotations which were made to him, as the result doubtless of much elaborate and learned research by the junior counsel for the Crown, from the reports of cases decided in the English Courts, and from the works of English, French, American, and other foreign authors. It is by the law of Scotland the Lord Ordinary must be governed, and when that law is clear, as the Lord Ordinary, on the strength of the authorities and decided cases to which he has referred, holds it to be, it is not only unnecessary, but would be idle to enter into any examination of the law of other countries upon the subject. He must be allowed to say, however, that one, and, as it seems to him, about the most valuable of the English decisions to which he was referred on the part of the defender, appears to be strongly adverse rather than favourable for him. The Lord Ordinary alludes to the case of The Duke of Beaufort v. the Mayor, &c. of Swansea, 9th Feb. 1849, 3 Welsby, Hurlstone, and Gordon's Exchequer Reports, pp. 413-15, where it was held that the sea-shore between high and low water mark may be parcel of the adjoining manor, and that where, by an ancient grant of the manor, its limits are not defined, modern usage is admissible in evidence to shew that such sea-shore is parcel of the manor. "The Lord Ordinary may also explain that he has not adverted to many cases and authorities even in the law of Scotland which were cited in the argument, because they appeared to him to be not only not directly in point, but to have merely a remote and inferential bearing on the question which has now been determined. He thinks it right, however, to notice in a few words the wellknown case of The Officers of State v. Smith, as decided in this Court 11th March 1846, 8 D. 711; and Smith v. The Officers of State, as decided in the House of Lords 13th July 1849, 6 Bell, 847; for, besides having a bearing on the points involved in the present case, it elicited to some extent the opinions on these points of Lords Brougham and Campbell in the House of Lords. The Judges who took part in the judgment in this Court were Lord Wood, as Ordinary, who merely referred to the judgment he had previously pronounced in the case of Patterson v. the Marquis of Ailsa, which has been already noticed as unequivocably favourable for the pursuer in the present case; the Lord JusticeClerk and Lord Medwyn, who reserved entirely their opinion on the question what is the true nature of the Crown's right to the sea-shore in circumstances similar to those which occur here; and Lords Cockburn and Moncreiff, the former of whom appears to have expressed himself as holding that, even in such circumstances, the radical and dominant right of property must be held to be in the Crown. But Lord Moncreiff appears, on the other hand, to have expressed himself very distinctly to be of an opposite opinion, viz., that a barony title, or even an ordinary crown title, to lands adjacent to the sea, with parts and pertinents, carries the property of the sea-shore, subject to a trust right in the Crown for public uses. And although in the Court of last resort Lords Brougham and Campbell stated that they reserved their opinion on that question, as unnecessary to be decided, the former noble and learned Lord is reported (496) to have observed, in the course of his remarks, that he took the same view of the matter as Lord Moncreiff. 1 March 11, 1846, 8 D. 711-aff. July 13, 1849, 6 Bell, App. 487. Agnew v. Lord No. 55. Cockburn, and Lord Chancellor Campbell incline to the side of the Crown, while Lord Moncreiff and Lord Brougham take the opposite view. See Jan. 21, 1873; also Lord Cockburn's opinion in Patterson v. Marquis of Ailsa. In Lord Saltoun v. Park2 it was not decided that a barony title gave the right of property in the foreshore, but only an exclusive privilege of taking sea-ware, a sort of legal servitude, founded neither on property nor possession. In the later cases3 there is little except an opinion by Lord Kinloch adverse to the Crown. In Magistrates of Culross v. Geddes it was only decided that lands might be gained from the sea. The cases cited by the Lord Ordinary are not in point. Innes v. Downie was only a question between a proprietor forty years in possession and members of the public, and did not proceed on title. Campbell v. Brown was only a question as to the boundary between two conterminous feus. Boucher v. Crawford went no further than Geddes' case. In Magistrates of Culross v. Earl of Dundonald the right to foreshore was raised, but the interlocutor went no further than what was held later in Lord Saltoun's case. In M'Alister's case no one concurred with Lord Gillies. He and Lords Moncreiff and Kinloch are the only Judges who have given a clear opinion on this question; and Lord Moncreiff's opinion was given in a case between a heritor and one of the public only.5 The text-books are in favour of the Crown's contention; and so are the English and American authori 6 "The defender, it is true, founded, per contra, on the remark of Lord Campbell (p. 501), 'that whatever may be the effect of the grant of a barony described to be upon the sea-shore, there is no foundation in law for the position that the simple grant of a piece of land will pass the sea-shore by which it happens to be bounded.' "But the Lord Ordinary must own that he is unable to see how this incidental observation of Lord Campbell can be held to affect the present case, where the pursuer does not merely and simply hold lands adjacent to the seashore, but holds them under a barony and other crown titles, with parts and pertinents, followed by possession and occupation of the shore for time immemorial. "After a full and careful consideration of the present case in all its features, and especially of the pursuer's crown titles, defined and fortified by the pos session which has followed on them, the result at which the Lord Ordinary has arrived is that the pursuer is entitled to decree as concluded for by him, under reservation of the Crown's right in trust for public uses. It is unnecessary, and it would be difficult, if not impossible, for the Lord Ordinary now to state or define with exactness what these public uses are, for that question has not been raised in the present case, and was not discussed or argued by the parties. It is left to the public, or to the Crown for the public, to vindicate and protect the reserved rights, whatever they may be, when and in whatever circumstances it may be thought necessary or desirable to do so." 1 March 11, 1846, 8 D. 752 (770). 2 Nov. 24, 1857, 20 D. 89; Keith v. Stonehaven Harbour Commission Trustees, Feb. 12, 1829, 7 S. 405. 3 Baird v. Fortune, May 25, 1859, 21 D. 849-rev. April 25, 1861, 4 Macq. 127; Trustees of Scrabster Harbour v. Sinclair, March 19, 1864, ante, vol. ii. 884; Hunter v. Lord Advocate, June 25, 1869, ante, vol. vii. 899. 4 Nov. 24, 1809, Hume's, Dec. 554; see also Aikman v. Duke of Hamilton, June 17, 1830, 8 S. 943; Berry v. Holden, Dec. 10, 1840, 3 D. 205 ; Brown v. Kinloch, 1775, M. 14,542; Earl of Fife's Trustees v. Cumming, Jan. 16, 1830, 8 S. 326; Garden v. Earl of Aboyne, 1784, M. 14,157; Leslie v. Cumming, 1793, M. 14,542; Meldrum v. Meldrum Feuars, 1716, M. 12,152. 5 Patterson (supra). 6 Balf. Pract. p. 626; Stair, ii. 1, 5; ii. 3, 45; ii. 3, 67, 69; ii. 7, 5; Ersk., ii. 1, 6; ii. 6, 1, 3, 14, and 17, 18; ii. 9, 14, 16, 17; Ross' Lectures, ii. 176; 2 ties. In regard to the practice, though there is no case known in which the No. 55. Crown has alienated the foreshore to a different proprietor, nor even to the same proprietor, on a separate disposition-this being now accomplished by Jan. 21, 1873. Agnew v. Lord leases there are many instances of express conveyance of the foreshore Advocate. with the lands. Apart from authority, it is plain that the foreshore is a peculiar territory, being alternately dry and covered with the sea, an element in which the Crown has a peculiar interest for the public good. In any case of ambiguity or doubt as to whether the Crown has conveyed the foreshore, it must be presumed not to have done so, but rather to have retained it in order the better to carry out its public trust. This is the meaning of Lord Stowell, as quoted by Lord Cockburn in Smith's case, where he lays down that a grant from the Crown must be strictly interpreted, and the clearest evidence of transfer required. If the foreshore be considered as one of the regalia minora, like salmon fishings, the barony title alone cannot carry it without possession, though Stair, supra, once thought differently.3 A decision in favour of the pursuer would practically be a grant of the whole foreshores of Scotland to the seaboard proprietors; for this case was chosen by the Foreshore Association as a typical one. The element of barony title, which applies to certain of the lands, makes no difference, this being a question of boundary, not of a franchise, like salmon fishing. The only difference between the foreshore and the rest of the land, as originally supposed to have been in the hands of the Crown, is in the matter of public uses; but that makes proof of transfer much more arduous, there being a manifest propriety in the Crown retaining the property so as to carry out the trust. On the analogy of a navigable river, a Crown grant of lands bounded by such a river would not, while a grant of lands bounded by a private river would, carry the bed up to the medium filum, though the water itself is public in both cases. The pursuer's argument would give him right, like the sea-board proprietors at Greenock and Port-Glasgow, to build on or enclose spaces below low-water mark. II. As to the possession had under the titles:-The pursuer's tenants no doubt took sea-ware, and had a special clause thereanent in the old leases, though not in the later ones. He himself quarried stone; so did his tenants and the public. As to oyster fishing, the right below lowwater mark was in the hands of a neighbouring proprietor, who had also fished on the foreshore, and the pursuer never had any possession, But there was adverse possession on the part of the public, and no evilence of their being debarred by the pursuer, except in one instance as to stones, and another as to sea-ware. If the sea-shore is open and unenclosed, there is no possession whatever which would necessarily be referred to property, e.g., the taking of sand is a servitude known to the law. It has never been decided whether taking sea-ware is or is not. And as in the cases of salmon fishing, the possession here too must be prescriptive, and be distinctly referable to the vindication of property, and to no other Bell's Prin, 641-3, 739, 746; Duff's Feud. Conveyancing, secs. 47 and 49; 1 Bract. ii. 12, 4, 5; Kent's Commentaries, iii. 560; Duke of Beaufort v. Mayor, &c., of Swansea, Feb. 9, 1849, 3 Welsby, Hurls. and Gordon, 413, 415. 28 D. 723; see 5 Robertson's Repts. p. 182. 3 Ersk. ii. vi. 3, 9; Cathcart v. Lord Advocate, May 19, 1871, ante, ix. 744; Duke of Richmond v. Earl of Seafield, Feb. 16, 1870, ante, viii. 530. * Lord Cockburn and Lord Chan. Campbell in Smith's case (supra). 5 Duchess of Sutherland v. Watson, Jan. 10, 1868, ante, vi. 199. |