No. 55. lower right. Nothing has been done here by the pursuer which the Crown could reasonably have prevented, even if it had expressly reserved Jan. 21, 1873., the foreshore to itself. In the cases of Lord Saltoun, Patterson, and LochAgnew v. Lord Advocate. alsh (Innes v. Downie), taking sea-ware, shells, and sand, was allowed, without determining as to the property of the shore itself. Such practices are explained as the exercise of servitudes, and are, besides, so harmless, that it would have been invidious to interfere. It is said of the manufacture of kelp in last century, on the shores of Lochryan in particular, that it cannot be a servitude, as the material is not used for the benefit of any dominant tenement. That requisite must be very widely construed, so as not to exclude the watercourse for a mill, which is used for the benefit of all the world; pasturage accruing to a burgh as dominant tenement,' or to a house only. It would be essential that the kelp should be manufactured on the prædium dominans.3 Building, reclaiming, and working minerals, are the only unequivocal vindications of property. It was argued for the pursuer;-This is a case very similar to that of the Lord Advocate v. Maclean of Ardgour, in which the Lord Ordinary's interlocutor, which decided in favour of the sea-board proprietor, was acquiesced in by the Crown. I. The true import of the evidence of possession is, that it was long established, indeed immemorial, and exclusive of all others. II. Even apart from any possession, the pursuer has a title which implies a grant of the foreshore. It is only lately that it has been contended that a separate or express grant of the foreshore is required to take it out of the Crown. The real question is whether the territory, which is alternately submerged and dry, is an accessory of the land on the one side, or of the sea on the other. If there were no tide the margin of the sea would be a proprietor's natural boundary. Now, it is admitted that the patrimonial interest of the Crown in the foreshore is alienable, and may be granted to a subject; and the question whether it has, in fact, been alienated, may depend on general principles of construction, the actual history of the transaction between the Crown and its subject, the nature of the subject, and the conveniences or inconveniences of the grant. In England and America such uses as are here proved establish the right of a grantee of lands to the foreshore, there being no distinction between the land which is constantly and that which is intermittently dry, but the only question is one for the proof-viz., What does the manor include ?5 It is admitted, at least with reference to the decisions of the Court, that no doubt had ever been expressed as to the foreshore passing with a general crown grant of the land adjacent to the sea till the case of The Officers of State v. Smith. But the same is also true of the institutional writers. The other cases were, without exception, either between competing landowners, or between landowners and the public, when the latter sought to increase the burden of public uses.7 So that this claim of the Crown is, if Maclean's case be put out of view, quite a 1 Murray v. Magistrates of Peebles, Dec. 8, 1808, F.C. 2 Feuars of Dunse v. Hay, 1732, M. 1824. 3 Lord Reay v. Falconer, 1781, M. 5151. 4 Jan. 9, 1866, 38 Sc. Jur. 584. 5 Hale de Jure Maris in Hargrave's Tracts, edn. 1787, Part i. cap. vi. pp. 25, 28; Duke of Beaufort (supra). Craig i. xv. 13, 15, 17; Stair, ii. 1, 5; ii. 3, 60, 61; Ersk. ii. 1, 5, 6; ii 6, 17; Bell's Prin. sec. 641; Mackenzie, ii. 6, 1; Duff, Feudal Conveyancing, sec. 47, 3, p. 64. 7 Innes v. Downie, May 27, 1807, Hume's Dec. 552. Agnew v. Lord novel one, and there is a strong presumption that no right ever existed in No. 55. its favour, from the fact that it looked on while all this litigation proceeded, and made no attempt to interfere. It is further admitted that Jan. 21, 1873. the foreshore is not inter regalia, and that the proprietor of land on the Advocate. sea-board holds certain rights. Now, on what title? Not as servitudes, for here the cutting of ware for kelp is inconsistent with such a right;2 but as property, burdened only with certain public uses. There is no fair analogy between the "solum" of the sea and the foreshore. In the one case there cannot be a grant "a cœlo usque ad centrum," in the other there can. At advising,— LORD JUSTICE-CLERK.-This is an action at the instance of Sir Andrew Agnew of Lochnaw, directed against the Lord Advocate, as representing the Commissioners of Woods and Forests, and the summons concludes that it should be found and declared that the whole soil and ground of the shore of the sea above low-water mark of ordinary spring-tides, ex adverso of certain lands belonging to the pursuer, pertains heritably in property and belongs exclusively to the pursuer as proprietor of the said lands. There are some other conclusions in relation to oyster fishing and salmon fishing into which we need not go, because these conclusions have been departed from. The title upon which the pursuer founds is, in the first place, a title to the 1. That the ground in question is capable of being transferred from the Crown 3. That it has been sufficiently established by the proof that the pursuer and 1 Boucher v. Crawford, Nov. 30, 1814, F.C.; Campbell v. Brown, Nov. 18, 813, F.C.; Commissioners of Woods and Forests v. Gammell, March 6, 1851, 3 D. 854 (868-9); Kerr v. Dickson, Nov. 28, 1840, 3 D. 154 (160); Maclister v. Campbell (supra); Nicol v. Blaikie, March 23, 1859, 22 D. 335 (342); Patterson v. Marquis of Ailsa (supra); Lord Saltoun v. Park (supra); Baird v. Fortune, H. L. April 25, 1861, 4 Macq. 127 (Lord Wensleydale at p. 147); Duchess of Sutherland v. Watson (supra); Smart v. Mags. of Dundee, Nov. 23, 1797, 3 Pat. Ap. 606. 2MTaggart v. M'Douall, March 1, 1867, ante, vol. v. p. 534 (Lord BenLolme, p. 547). No. 55. argument; but both propositions seem to be well founded, provided the third be a correct deduction from the facts proved. If it be so, this is sufficient for Jan. 21, 1873. judgment in the present case, and may render superfluous the consideration of Agnew v. Lord some more speculative points. But as we were told from the bar that the suit Advocate. was intended to raise for judgment the general nature of the beneficial right in the foreshore, I shall shortly explain the steps by which I reach the question of possession on which the case, in my opinion, entirely turns. It would be hopeless, within any moderate compass, and is altogether unnecessary, to analyse the large list of authorities on this subject. I prefer rather to state their import briefly, and to endeavour to extract from them the general principles to which a consideration of them ought to lead. With some modifications, which I shall explain, I concur in the views of the Lord Ordinary. I! agree with him in thinking that most of the elementary principles on which questions of this class depend have been fixed by a series of well-weighed judg ments pronounced by the highest authorities in Scottish conveyancing. We have little or nothing which is new to learn in this department of jurisprudence. English analogies may mislead us; for although in such a case as the present, if I rightly understand them, they would probably lead to the same result, there are important distinctions between the systems on this subject, as Mr Bell well points out in his Principles. The safest guides we have are to be found in the decisions of the great feudalists of the two last generations, and they leave nothing which is material undetermined. The nature of the right which the Crown has with us in that portion of the soil or territory of the realm which is subject to the flow and ebb of the tide is clearly fixed. It is settled in this country that the sea itself below low-water mark, with the soil which it constantly covers is, as a general rule, extra commercium. It is one of the regalia majora as far as the national dominion extends, and is not capable in general of becoming the property of an individual, but is held in trust by the Crown for the community. Some uses and incidents of the sea, and even in some special circumstances the soil itself, may be appropriated, as in the case of harbours, minerals, salmon fishing, and even, as was found in the case of the Duchess of Sutherland, mussel beds; but still, as a general proposition, it is true that the sea and its bed are inalienable, and are not ordinary subjects of commerce. With the ground above low-water mark it is different. It also is vested in the Crown as regards all the public uses of navigation, and such like, to which it is subject, and to that extent is inalienable. But as the land is ordinarily capable of being beneficially used, so, subject to the public uses, it is simply part of the soil of the kingdom, remaining like all the rest of the land vested in the Crown until granted out, and when granted out held under the Crown as its feudal superior. Lord Stair, in the passage quoted by the Lord Ordinary, expresses himself with his usual precision. The shore, he says, "remains proper." It does not become "proper," but remains so, subject to and notwithstanding of the public and inalienable rights over it. That is to say, in its patrimonial character and as respects its beneficial enjoyment, it is held by the Crown, and conveyed by the Crown, as other land is held and conveyed. Of course, therefore, the right of property in the shore can only pass from the Crown to a subject by a crown charter, and such charters when granted will be construed according to those feudal rules with which we are familiar. The fact that all the land in Scotland holds of the Crown, and that the crown investi tures are regularly renewed, renders this a subject with which our conveyancers are specially conversant. No light can be thrown on this subject from such dicta as that of Lord Stowell in the case of the "Elsebe,"1 in reference to a crown gift of prize money, although probably the principle contained is of general application. This is a question of feudal grant, depending exclusively for its solution on feudal principle, and involving elements both of technicality and fact which can only be judged of according to the rules of our own system. But there is no speciality attaching to crown charters of the land above low-water mark which 1 5 Robins. Adm. 173. does not apply to crown charters relating to other land. The same presumptions No. 55. apply to both. The soil, no doubt, is subject to certain public uses; it is in itself of little profit to the owner, but it has no exceptional or peculiar character Jan. 21, 1873. as regards the mode of transferring it. Agnew v. Lord Advocate. It is certainly not among the regalia minora, and therefore is not one of those beneficial rights of property vested in the Crown, which from their rarity or value cannot be carried without an express grant. Indeed, as regards its patrimonial character, it is not inter regalia at all. This is matter of express decision. Lord President Campbell, in the case of Innes v. Downie (Hume, 552), in the note of his opinion preserved on his session papers, says,-" Property of the land adjacent to an heritor's shore is not a regale. Rocks with sea-weed and the like are pertinents of the adjoining property without a royal grant." Lord Moncreiff, in the case of Ker v. Dickson, thus states the law :- "The Lord Ordinary adopts the opinion of President Campbell in the case of Innes v. Downie, 27th May 1807, as reported by Baron Hume, which, besides being of high authority in itself, appears to be in perfect agreement with all the other authorities, that the sea-beach or rocks within flood mark are not inter jura regalia, but subjects of private property for all purposes not inconsistent with the public uses." Lord Justice-Clerk Hope, in the case of the Marquis of Ailsa v. Patterson, stated the law in similar terms. From its nature, indeed, the sea-shore, covered twice a day by the tide, possesses nothing in itself of that character of special value which characterises the regalia minora. Its only value arises from its being an accessory of the sea as regards its public uses, and of the land as regards its capability of being used to private profit. But it follows that, if the shore be not inter regalia, it may be transferred by the same forms as any other land may be transferred; and so it has now been clearly settled, that if land be granted by the Crown, and be described in the conveyance as bounded by the sea, the grantee has right down to low-water mark. This was decided in the first of the cases of the Magistrates of Culross in 1769 in a question with Lord Dundonald, who had a posterior express grant of the sea-shore; and after the opinions of Lord Glenlee in the case of Brown v. Campbell, of Lord Medwyn in the case of Ker v. Dickson, of Lord Justice-Clerk Hope in the case of Nicol v. Blaikie, as well as the analogous cases of Smart in the House of Lords, and Berry v. Holden, the rule may be considered as fixed. It has been, however, maintained by the pursuer, that it is to put his right on too low a level to assimilate it to ordinary property in land; that the sea-shore is an accessory of the adjacent land; and that the right to the adjacent land, if it have not an excluding boundary, necessarily carries it. In the case of Smith v. Officers of State Lord Campbell is reported to have said that there is no foundation in law for the proposition that the simple grant of a piece of land will pass the sea-shore by which it happens to be bounded." On the other hand, Mr Bell, in his Principles, states the result of the decisions, in contrast with the law of England, to be this: He says (642)," The sea-shore is not, as in England, held to be the property reserved to the sovereign, but presumed to he granted as part and pertinent of the adjacent land, under burden of the Crown's right as trustee for the public uses. In my opinion both views are too unreservedly expressed. On the one hand, there is very high authority in the direction of Mr Bell's view. A note of two cases reported by Tait indicates the opinion held by the lawyers of last century on the subject:" In determining a cause concerning an oyster fishing between Ramsay of Prestwick and the York Building Company the Lord President gave it as his opinion that the alreus maris, properly so called, and which is constantly covered with water, belongs to the Crown for behoof of the public. 30th November 1763. "But as to the shore within the flood mark, covered at flood and bare at ebb, it would appear that it remains the property of the contiguous heritor, subject to the common uses of navigation. So argued as to lime rocks, summer 1772. Sir John Hall v. Dirleton." The same doctrine was expressed by Lord President Campbell in the case of Innes v. Downie, by Lord Meadowbank in the case of Campbell v. Brown, by Lord Gillies in the case of Macalister, 15 S. 490, and by Lord Corehouse in the No. 55. Jan. 21, 1873. Advocate. case of Suttie, 15 Sh. 1037. It was again distinctly repeated by Lord Kinloch in the case of Hunter, decided last year. These authorities are among the highest in this department of our jurispru Agnew v. Lord dence, and it is idle to speak of their opinions as obiter dicta. They were in all these cases the grounds of judgment. Nevertheless, I incline to think that Mr. Bell's conclusion from them is too broadly expressed. As applied to the present case, they must be taken with two important qualifications. In the first place, these opinions were not delivered in any question with the Crown. Where they related, as the three last cases did, to questions between a subject superior and his own vassal, the true construction of the crown grant could not arise. If the vassal had clearly no right to the shore by the terms of his grant he was not in a position to challenge with effect that of the superior. On the other hand, if the superior, having right to the sea-shore, feued out the lands adjoining the shore without any excluding boundary, it might be fairly maintained that the vassal's right was co-extensive with that of his author. But, secondly, I imagine that this doctrine can go no further, in a question with the Crown, than to establish that a grant from the Crown of lands lying on the sea-coast may include the shore, if there be no words which exclude it, provided the state of possession indicate that such was the nature of the grant. And this leads me to point out how important this element of possession is to the practical solution of this question. The sea-shore, in its natural state, is capable of beneficial possession, and to the extent to which it is so it may be assumed that it has always been beneficially possessed. But there is no example of the Crown using the shore in its natural state for purposes of profit. Indeed, without possessing ground above high-water mark the property of the shore would be generally useless for bene- | ficial purposes, at least for most of them. Neither is there any example of a gift of the shore to any one, excepting to the proprietor of land contiguous. ⠀ Nor, in general, has there been inserted in crown titles any words which could limit the right of the grantee in this respect. In small portions of the coast considered favourable for purposes of navigation the Crown may have so expressed its grants as to exclude the shore. But in general the land round the shores of the island has been granted out in large baronies, like that now in question, or to burghs which are seaports; and in both it may be inferred that the beneficial occupation of the shore had accompanied their occupation of the dry land. We may thus easily see how the real question which the Court had to consider in these cases was, how far the title would support a possession which in most of them was not doubtful, and which in few of them was disputed. Along the coasts of Scotland, especially on the west, the possession of the sea-shore by adjoining proprietors was, during last century, practically universal. A large and lucrative manufacture—that of kelp-was carried on by means of its occupation; and the crop was reaped periodically, as regularly as, and more profitably than that growing on the land. The Crown never pretended right to interfere with the owners in this use of the shore, simply because it never had occurred to the Crown to be doubtful that the charter to the land included the shore also; and this accounts for the fact that throughout the series of decisions in question it seems to have been assumed that the Crown had, and could have, little interest in the matter, excepting as trustee for the public. In Accordingly, in almost all the cases in question, even where the possession was not introduced as an essential element, the existence of it was apparent. The case of the Magistrates of Culross v. Cochrane well illustrates this. that case Lord Gardenston said :-"The right of the town of Culross is a grant from the Crown, confirmed and explained by possession. The subject of the grant is bounded by the sea. If this does not comprehend the shore, there is a valuable property still in the hands of the Crown, which is supposed to be in the subjects having estates on the coast,-I mean the sea-ware all round Scotland. On the other side, the grant is of a later date, and there has been no possession." It will be found, on examining the cases, that in none of them has the title to the sea-shore been sustained, excepting where it either appeared, or was assumed, that possession followed upon the grant. |