Scottish Court of Session Decisions

The Solicitor - General, Gifford, and Guthrie, for him, argued—The pursuer alleges that the legal line of boundary runs further to the south—that is, more into the defender's property—than the line to the Caughy Stone, and is more favourable to him. On this ground he is entitled to support his claim to the last mentioned boundary as actually less than his legal right. He is willing to waive his right. The true legal boundary is one drawn from the extremity of the land boundary, so as to make equal angles with the average line of the shore at that point, i.e., to bisect the angle formed by the line of shore on each side.

Patton, Shand, and Balfour, for the defender, supported the interlocutor of the Lord Ordinary so far as it disposed of the question of possession and dismissed the action. As to the principle to be applied, they answered—The true principle is that laid down in Campbell v. Brown, viz., to drop a perpendicular from the end of the land boundary on the line representing the medium filum of the river or firth. This principle is to be followed out in the present case by taking the central line or the medium filum of the Bay of Luce, and dropping a perpendicular on that line from the end of the land boundary. Campbell v. Brown, 18th November 1813, F.C.

At advising—

The Lord Justice-Clerk said—In this case it would have been more satisfactory if we had had before us the precise terms of the titles of parties. But for the purpose of the present judgment it is sufficient to know that these gentlemen, who are adjoining proprietors, have each a Crown grant of wrack and ware—that the titles prescribe no boundaries within which the right is to be exercised, and consequently that the legal presumption is that each proprietor's right extends ex adverso of his lands. The object of the present action is to fix the boundary between the shore ex adverso of the one, and the shore ex adverso of the other, so as to define the point of the shore where each party may exercise his right. And I think the summons raises this question well enough, whether the question is made dependent on considerations of abstract right or of possession. The pursuer concludes—[His Lordship here read the conclusions of the summons]. These are the alternative views presented by the conclusions of the summons. Now, these conclusions are supported on two separate and distinct grounds. The one is that the state of possession is conformable to the conclusions of the summons or one or other of them, and the pursuer asks that the rights should be fixed according to the state of possession. But it is a separate and totally distinct ground that the legal line—that is, the line which divides the exercise of the right according to the situation of the estate, and the conformation of the coast—so runs as to entitle the pursuer to come at least as far as the line concluded for in the action. This ground of action is set forth in the 8th article of the condescendence as follows—[His Lordship read the article]. Now, it may appear at first sight not quite intelligible why the pursuer should limit his demand within the area of the legal line, but it is easily understood why, because there is a conspicuous natural object lying seawards in the direction of the line he claims, and if the boundary between the properties be fixed by an imaginary line between the shore and that point, there will be an intelligible boundary for the future. The pursuer is therefore right, if entitled to a boundary line, to limit it to a point falling within his legal right. The judgment of the Lord Ordinary proceeds on a misunderstanding of these alternative views of the case. His Lordship finds—“That the pursuer has not established that the boundary line between his property and that of the defender, on the shore ex adverso of the same, is either a straight line drawn from a point at or near the stones known by the name of the March Stones, placed near Chapelrossan, on the sea wall of the public road from Stranraer to Drumore, running said line seawards to the Caughy Stone or Rock in the Bay of Luce; or otherwise, a line drawn from the said point at or near said March Stones to a point immediately south of the yards known by the name of the Ardwell Fish Yards, in said Bay of Luce, and in the same direction seawards beyond the said Fish Yards.” The pursuer has not established, according to the Lord Ordinary, that either of the lines in the conclusions of the summons is the proper legal line; for his Lordship seems to think that possession has nothing whatever to do with the question, and if it has, that the proof of possession has failed. The judgment of the Lord Ordinary amounts to this, that because the pursuer has claimed too little he must fail. I cannot go in with that. The 8th article shows that the line claimed is within the legal line, and therefore, in the first place, I am for recalling the interlocutor of the Lord Ordinary. But the next question is how to put the case in shape for judgment. All the facts necessary for this purpose are established, but we have to fix the principle upon which the legal line is to be settled, having regard to the facts that have been established. The question is one of some delicacy, and the counsel for the defender endeavoured to represent to us that the language used in the condescendence is inconsistent with legal principle, and that to draw a perpendicular line from the shore is against legal principle. That depends on what is meant by these terms, and if it is meant that the angles of the shore are the points from which the line is to be drawn, it is true that that would be irrational and absurd. But I don't so read the pursuer's averments. He says that the perpendicular is to be at equal angles with the shore, on an average line of coast; and if that is the true construction to be put on his averments, I think he is right. It was strongly pressed upon us to apply the rule of Campbell v. Brown, and that certainly is an important rule, and may be held to be settled for such cases. The properties there were near Port-Glasgow, the river running between the two properties, and one bank of the river being opposite the other. The rule is thus stated by Lord Meadowbank in a single sentence:—“The only invariable and universal plan which can be adopted is to take an average direction of the narrow sea, from which perpendiculars should be dropt on the march stones of the different properties. On these perpendiculars parties would be entitled to form bulwarks which would never interfere, and of which the direction would be precise and definite.” Now, I think that that is a sound rule as applicable to that kind of case. But it is perfectly obvious that that rule cannot apply to all cases of fixing boundaries, because where there is no opposite bank an opposite rule must be adopted. What, then, is the rule? It should be fixed by following as near as possible the analogy of the principle laid down in Campbell v. Brown; and I think it is very well stated by the Lord Ordinary. His Lordship says—“Using the analogy of the case of Campbell v. Brown, the Lord Ordinary was disposed to think that the proper method was to take a line representing the line of the shore, drawn at such distance seawards as to clear the sinuosities of the coast, and let fall on such a line a perpendicular from the end of the land boundary. Of course he does not mean a line representing the whole coast of the Bay of Luce, but a line fairly representing the average line of the shore extending on either side of the land boundary. To let fall a perpendicular on this line from the end of the land boundary, occurs to the Lord Ordinary as the nearest possible approximation to the application of the principle laid down in Campbell v. Brown.” I think these reasons are well stated, and the only question that remains is, whether the principle that applies to the open sea is the one that applies to the Bay of Luce, or whether we must not apply a stricter rule. I am disposed to think that that depends on circumstances, and is a question of degree. [His Lordship referred to illustrations, made in the course of the argument, from the cases of lochs and estuaries, and continued]—In the case of bays it would be quite impossible to apply the rule of Campbell v. Brown, with a due consideration to the rights of parties, and giving the best attention to the Bay of Luce. I think that the principle applicable to the open sea, and not that applicable to estuaries, must be applied. It is said that if the perpendicular were raised on this principle embarrassment would be caused in rights seaward, such as oysters. I don't think this follows, because it would only divide the shore for the exercise of the right of ware and wrack, and for nothing else. Other divisions of the shore for the exercise of other rights would depend on quite different considerations, with which we are not now concerned. All we have to do is to divide the shore for these two adjacent properties, and I think the principle laid down by the Lord Ordinary, rather than that laid down in Campbell v. Brown, should be preferred. I would therefore propose to your Lordships, as the most convenient way of disposing of this case, that we should have a line laid down by a man of skill representing the average line of coast from which perpendiculars may be dropt, so as to divide the shore.

The other Judges concurred.

The Court accordingly remitted, before further answer, to Mr Keith Johnston, to lay down a line representing the average direction of the coast, and a perpendicular drawn to it from the termination of the land march between the properties, with leave to the parties to ask Mr Johnston to lay down such other lines as should tend to elucidate the questions at issue.