Scottish Court of Session Decisions

This case originated in the Sheriff-Court of Argyllshire by a petition at the instance of Mr Patrick of Benmore. The petition was as follows:—“ The petitioner humbly sheweth,— That he is heritable proprietor of the estates of Kilmun and Benmore, including, inter alia, the lands of Creggan, which is a part of the farm of Kilmun, and also of the lands of Gareletter, which is part of the farm of Blairmore.

“That the respondents trespassed and intruded themselves violently and illegally on the said lands of Creggan, part of the farm of Kilmun, where they now reside, and erected without the knowledge or consent of the petitioner a but or tent, or other temporary dwelling-place, in or near to the said lands of Creggan. During a part of the year, the respondents erected, also without the consent or leave of the petitioner, a but or tent, or other temporary residence, in or near the lands of Gareletter, which is part of the farm of Blairmore, which last-mentioned but or tent is occasionally shifted about from place to place, all to the loss, injury, and damage of the petitioner.

“The petitioner has frequently desired and required the respondents to flit and remove from the said huts or tents, to which they have no legal

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right, and for which they never paid any rent, but the respondents refuse to comply with this request, and threaten to retain possession of the subjects, by which the present application has become necessary.

“May it therefore please your Lordship to appoint a copy of this petition, with the deliverance to follow hereon, to be served on the said Janet M'Callum, Susan M'Callum, William Craig, Elizabeth M'Callum or Craig, and the said William Craig, her husband, for his interest, Maggie or Margaret M'Callum, and William M'Callum, and upon the tutors and curators of the said Maggie or Margaret M'Callum and William M'Callum, if they any have, for their interest; and, thereafter, to grant warrant to summarily eject and remove the respondents, their wives, bairns, families, dependants, goods, and gear, and all other effects belonging to them, furth and from their possession of the said but or tent at Creggan aforesaid, and from the said lands of Creggan themselves, and to desist and cease therefrom, and to make the same void and redd to the petitioner; and on the respondents being so removed, to interdict and prohibit them from returning to, or squatting on, or intruding themselves, or their foresaids, on the said lands of Creggan or Gareletter, or on any other lands belonging to the petitioner; and to find the respondents liable in expenses, and to decern therefor; or to do otherwise in the premises as to your Lordship may seem proper, and to decern.”

The defence was — “ (1) That the respondent Janet M'Callum, and her co-respondents, Susan, Margaret, and William M'Callum, are employed in fishing, and for that purpose have a boat, nets, fishing-lines, and other instruments for plying their business as fishers. They reside in the wooden but at Creggan, from which they are sought by the present action to be ejected. The but was built in May 1858 by the said Janet M’ Callum, under the highest high water mark of the sea at Creggan, and she has, along with the other respondents abovementioned, continued to reside in it ever since without interruption. (2) The respondents occupy the but which they have erected on the sea-shore for the purpose of carrying on their occupation as fishers, and that in virtue of the second section of the Act, 29 George II., cap. 23, intituled ‘ An Act for Encouraging the Fisheries in Scotland.’ (3) That the petitioner has no right to the shores upon which the said wooden but is erected, and is liable to a penalty of £100, in terms of the said Act, 29 George II., cap. 23, for interfering with the respondents in their calling as fishers.”

The Sheriff-substitute (Cunningham Graham) pronounced the following interlocutor: — “ The Sheriff-substitute having heard parties' procurators, and considered the closed record and whole process, repels the defences stated, and grants warrant to summarily eject and remove the respondents, their wives, bairns, families, dependants, goods and gear, furth and from their possession from the but or tent at Creggan, mentioned in the petition, and from the said lands of Creggan themselves, as prayed for, on a charge of forty-eight hours in common form; and on the respondents being so removed, interdicts and prohibits them from returning to, or squatting on, or intruding themselves or their foresaids on the said lands of Creggan or Gareletter, or others belonging to the petitioner: Finds the defenders liable to the pursuer in expenses, appoints an account thereof to be given in, and remits to the auditor to tax the same when lodged, and to report.

“ Note.—The defenders show no good title,— not even a colourable title,—to their being allowed to remain where they are. Their first plea seems to demand, as it were, a sort of possessory judgment; but in the absence of a single line of written title preceding or recognising lawful possession, this cannot be allowed. The Sheriff-substitute, however, deals with a portion of this plea, and with some of the others, with very great diffidence in his own judgment, for the question raised is one upon which older and wiser lawyers are entirely at varience. The ground in question is below high-water mark, and the Sheriff-substitute rather leans to the view that the public have a certain right over it. It is difficult to say whether such land belongs to the proprietor ex adverso, or to the Crown absolutely, or to the Crown merely in trust for its subjects, and for their free use of it. But by ‘free use’ it is not meant to imply the selfish and exclusive use of it, by building a house upon it, and thus taking a portion of public property for one's own. The defenders have no right to do so in any view. The Sheriff-substitute must honestly confess that he has great difficulty in assigning clearly his reasons for the foregoing judgment; but, describing them roughly, they come to this, that the petitioner has some show of a title, while the respondents have none.

“ The Fishery Act quoted does not apply.”

The Sheriff, having at a previous stage of the case made a remit to an architect to inspect the but referred to and to report, adhered in the following interlocutor:— “ The Sheriff having heard parties' procurators, and considered the appeal for the defenders and whole process, adheres to the interlocutor appealed against, and dismisses the appeal; Finds the defenders liable in additional expenses as these may be taxed, and decerns.

“ Note.— The Sheriff-substitute is in error in saying the but in question here is below high water mark, for Mr Mitchell in his report says that the grass is growing six feet out from the gable next the sea, and the sea he states only in extraordinary high tides the water comes up to it. Now it is clearly laid down that the sea-shore is that ground which is covered by the sea between high and low water mark of ordinary tides. The Sheriff, therefore, considered this to be a but not on the sea-shore, but above ordinary high water mark. It is, therefore, unquestionably on the pursuer's land; although, even if it had been on the shore, the Sheriff is inclined to think the adjacent proprietor is entitled to prevent persons squatting or erecting houses on the beach.

“ The Sheriff, as he formerly indicated, thinks the Statute of Geo. II. does not form a good defence where the erection is not of a temporary character, and merely for the purpose of fishing. It is avowedly, and, according to the report, intended for a dwelling, and if one such house is authorised by the Statute, whole villages might be erected on waste land above high water mark, without any rent paid to the proprietor or any leave asked from him. Looking at the context, and that the word ‘huts’ comes between ‘tents and stages’

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it cannot be held that the Statute contemplated houses for continuous residence.”

The respondent' the InferiorCourt now brought a reduction of these judgments, mainly relying upon the grounds pleaded on the merits in the Inferior Court.

The Lord Ordinary (Kinloch) pronounced the following interlocutor:—“ The Lord Ordinary having heard parties' procurators, and made avizandum, and considered the process, repels the reasons of reduction:—Assoilzies the defender from the conclusions of the action, and decerns: Finds the pursuer liable to the defender in the expenses of process; allows an account thereof to be lodged, and remits to the auditor to tax the same, and to report.

“ Note.—It appears to the Lord Ordinary that the Sheriff acted judiciously in ascertaining the character and situation of the but in question, by the simple and inexpensive proceeding of the remit to Mr Mitchell.

“ Mr Mitchell's report seems to the Lord Ordinary to establish that the but is not on the shore, but strictly within the lands of the defender. Mr Mitchell reports that ‘the grass is growing round the gable next the road, and round the back, and for six feet out from the gable next the sea and the sea, he states, only comes up to the house ‘at extraordinary high tides.’ He marks ‘the height of spring tides’ some feet below the hut.

“ Even if the but had been within high water mark, the Lord Ordinary would not have held that the defender was not entitled to have it removed, if placed there without any title. Whatever difficulties may have occurred in regard to the legal right to the sea-shore, it appears to the Lord Ordinary undoubted that the adjoining landowner has such an interest in the shore ex adverso of his property as to entitle him to prevent any individual from interposing, for his own private benefit, such an erection between his lands and the sea. The Court has interfered to prohibit a much less material encroachment; Nicol v. Blaikie, 23d December 1859, D. 22,335.

“ This being so, and the defender having in the estimation of the Lord Ordinary a clear right to remove the occupants of the but if not possessed of a legal right of occupancy, it further appears to him established that no such right belongs to the pursuer. The only right claimed by her is alleged to arise out of the British Fishery Act, 29 Geo. II., cap. 23, which, she argues, gives all engaged in fishing a right to have a tent either below the highest high water mark, ‘or for the space of 100 yards on any waste or uncultivated land beyond such mark.’ But the Lord Ordinary concurs entirely with the Sheriff in holding that this right is given solely for fishing purposes, not for that of permanent residence. The preamble of the Act bears it to be expedient that those engaged in the fisheries should I have the full use of all ports, harbours, forelands, and others, for bringing in, pickling, drying, unloading, and loading' the fish. And on this preamble right is given to use uncultivated land within 100 yards of the shore, ‘for landing their nets, casks, and other materials, utensils, and stores, and for erecting tents, huts, and stages, and for the landing, pickling, curing, drying, and reloading the fish.’ The context here shows that the tents and huts permitted to be erected are for what may be called trade purposes, not for that of permanent residence. Any other view would very manifestly sanction the erection and maintenance of a fishing village, overflowing with colonists, on the ground of any proprietor adjoining the sea, without payment of rent. This, it is conceived, was never intended by the Statute; and what holds in the case of an entire village will equally hold in that of a single habitation. The but in question is used for personal residence, and not in any correct sense for fishing purposes; for which it is of no more use than the rocks which form its support. The Lord Ordinary therefore thinks that the Sheriff's judgment, removing the pursuer, proceeds on sound principle. The principle is accordant with that which was recognised in the decision of the case of Hoyle v. H'Gann, M'Cann l0 th December 1858, D. 21, 96.

The pursuer reclaimed.

Black for her.

Adam for defender.

At advising—