Scottish Court of Session Decisions

Miss Jane Stewart, residing at Liberton Manse, and her sisters raised an action against the Greenock Harbour Trustees, concluding to have them removed from a piece of ground on the east side of Virginia Street, Greenock, which they alleged was a part of a feu belonging to them. The Harbour Trustees thereafter raised an action to have it declared that the said piece of ground belonged to them. The two actions were afterwards conjoined.

The feu belonging to the Stewarts was acquired by their ancestor, Roger Stewart, in 1789, from John Shaw Stewart, of Greenock, and was described as “that piece shoar or sands wholly within the high-water mark, lying upon the north side of the high road leading from Crawford's Dyke to the town of Greenock, and upon the east side of the slip or entry of 44 feet wide, leading into the sea to the low-water mark.” Then followed a particular description both of the boundaries and measurements of the feu. The stipulated feu-duty was exactly proportioned to the measurement stated. The precept of sasine directed sasine to be given of ground of the “particular mensurations” and “bounded” as before specified. The contract contained this clause—“with power to the said Roger Stewart and his foresaids to gain the said piece of shoar off the sea by stone walls or bulwarks.” There was also a declaration that the superior should not have it in his power to feu that part of the shore immediately below and to the northward of the feu without first making an offer of the same to the said Roger Stewart. The high road referred to in the description is now the street called Rue End Street. The site of the slip or entry also therein referred to is now occupied by Virginia Street. The sea-shore, which was the boundary of the feu on the north and east sides, was vacant in 1789. It was averred by the Harbour Trustees that the superior contemplated feuing this ground to the north, as appeared from the clause of pre-emption above-mentioned.

By an Act of Parliament passed in 1801 the powers of the Harbour Trustees were enlarged, and they were authorised to build new harbours, piers, &c., on the shore ground within certain limits, which limits comprehended the shore to the north of Roger Stewart's feu. The trustees averred that in anticipation of this Act they had arranged with the superior for the purchase of a large tract of shore ground, consisting of upwards of five acres, and that although no formal title was granted, the agreement was concluded and possession given at Whitsunday 1801. A feu contract was executed in 1811, by which the trustees acquired “all and whole the East Harbour of Greenock, as now erecting,” bounded, inter alia, by the river Clyde on the north and by the properties belonging, inter alios, to the heirs of the late Roger Stewart on the south. It was averred that the trustees in this way acquired right to the whole shore ground immediately to the north of the ground feued to Roger Stewart, and that the ground in question had been possessed by them for more than forty years. The ground had now become valuable, and hence this litigation.

On the other hand it was averred by the Stewarts that when their ancestor feued his ground, he had, in virtue of the power in his charter, embanked the ground to the north of his feu, and so gained it off the sea. For that purpose he constructed at the north end of his ground a stone bulwark which was wholly outside of the measurements specified in his contract. It was the solum on which this bulwark was erected which was now in dispute. The shore ground which the trustees had been authorised to embank was then entirely within the sea at high water, and had not been gained from the sea. The conveyance of 1811 to the trustees did not include any part of the ground within Mr Stewart's bulwark. The disputed ground had not been possessed by the trustees, but had all along been possessed by them and their tenants.

The trustees pleaded that the ground was expressly included in their charter and not in Mr Stewart's; that they had possessed it for forty years, while the Stewarts had not; and that the Stewarts had no title under which by any length of possession they could acquire right to the ground. The Stewarts pleaded that the ground in dispute was beyond the trustees' property, which they held under a bounding title, and that therefore they were entitled to be assoilzied from the declarator.

Lord Kinloch, on 9th July 1863, found that the Stewarts had right to no ground other than is contained in their charter, according to the measurement therein specified, and no right to any ground beyond said measurement in name of embankment or in respect of alleged possession. He held that Mr Stewart's charter was a bounding title, and that they had no title to any ground beyond the bounding lines. He did not think that the power given to Mr Stewart to erect a bulwark beyond his boundary in order to gain the shore ground from the sea was meant to give him any property in the ground on which the bulwark was erected.

The Stewarts reclaimed against this interlocutor, and the Court, after allowing a proof and hearing parties, adhered to Lord Kinloch's interlocutor, with expenses, subject to modification.