Scottish Court of Session Decisions

This was an action of suspension and interdict at the instance of William Stephen and others, fishermen in Boddam, Aberdeenshire, as individuals, and also as a committee elected by the fishermen of Boddam for transacting the fishing affairs of the village, against William Aitken of Boddam.

The prayer of the note was as follows:—“May it therefore please your Lordships to suspend the proceedings complained of, and to inlerdict, prohibit, and discharge the said respondent, and all others acting under his authority, from troubling, molesting, or interfering in any way with the complainers and the other fishermen belonging to the village of Boddam in laying up for the winter season, beaching or taking their boats above high water mark at or near the harbour of Boddam, upon the ground coloured blue and green in the plan or sketch herewith produced and referred and marked as No. 7 of process, or otherwise to do in the premises as to your Lordships shall seem proper.”

The action was brought in the following circumstances:—The village of Boddam was a fishing village, and the proprietors of the estate of Boddam, on which the village was situated, being desirous to develope and increase the trade, had always done what they could by liberal agreements to induce fishermen to build and settle there. From time immemorial the fishermen had been in use to beach their boats on the ground in dispute. They did not aver that they or any of the fishermen in Boddam had ever obtained from the proprietor, or any of his predecessors, any written grant entitling them to use the ground for beaching their boats, but they maintained that they had the right under their written titles to their houses as explained and defined by immemorial usage. The so-called titles were merely minutes of agreement for leases, entered into from time to time between the fishermen and the successive proprietor of the estate. In 1839 the Earl of Aberdeen acquired by purchase the estate of Boddam, and in 1845, being desirous of improving the harbour, he obtained an Act of Parliament (8 and 9 Vict., c. 25) for that purpose. Clause 7 of the Act was in the following terms:—“And be it enacted, that it shall be lawful for the said Earl and his heirs and successors to demand and receive for every vessel which shall enter within the limits of the said harbour any sum not exceeding the several rates and duties on tonnage specified in the schedule (A) hereunto annexed.”

The schedule (A) here referred to was inter alia as follows:—

For herring boats:—

For all herring boats engaged at the fishery at Boddam, for the period of their fishing season, to be paid at the commencement of the fishery, and that in lieu of all tonnage duties payable for such herring boats,	£0	5	0
For all other boats under 26 tons, coming into said harbour, for any purpose whatever,	0	0	7
And all above 25 tons to be charged the same as coasting vessels,
For all boats laid up at Boddam for the winter season,	0	5	0

The payment of 5s. for beaching boats specified in this schedule was never levied by the Earl of Aberdeen. In 1865 the respondent purchased the estate from the Earl of Aberdeen, and thereafter

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levied the payment of 5s. for every boat beached on the ground in dispute.

In 1873, however, the respondent intimated that boats were no longer allowed to be laid up on the ground in question. The complainers accordingly brought the present action.

The respondent averred that there had never been any agreement between the proprietor and the fishermen allowing them to beach their boats on the ground claimed, and that the fishermen had acquired no servitude to that effect. The 5s. allowed to be charged by the Act was for boats laid up within the harbour, and the ground in question was without the harbour bounds as fixed by the statute.

The complainers pleaded—“(1) The acts complained of being a violation of the rights possessed by the complainers at common law and enjoyed by them for immemorial time, they are entitled to suspension and interdict as craved. (2) The complainers are entitled to be protected in the exercise of their right to beach their boats on the ground in question in respect of the provisions of the Act 8 and 9 Vict. c. 25. (3) The complainers are entitled to be protected in the exercise of said right in terms of the Act 29 George II. c. 23.”

The respondent pleaded—“(1) The complainers have not set forth, and do not possess, any title to insist in the present note. (2) The statements of the complainers are not relevant or sufficient to support the prayer of the note. (2) The spaces of ground in question being the exclusive property of the respondent, and the complainers having no right of any description in regard thereto, the suspension ought to be refused.”

The Lord Ordinary allowed a proof, the result of which was that it appeared that the fishermen had been in use to beach their boats on the ground in question from time immemorial; that there was no other place convenient for that purpose; and in particular, that it was impossible to beach the boats within the harbour.

The Lord Ordinary pronounced this interlocutor—

“ Edinburgh, 10 th December 1874—The Lord Ordinary having heard counsel for the parties, and considered the closed record, proof, and whole process: Refuses the suspension, finds the complainers liable in expenses to the respondent, appoints an account thereof to be lodged, and when lodged remits the same to the auditor to tax and to report.

Note—The respondent, Mr Aiton, is proprietor of the estate of Boddam, which is situated on the sea-coast, in the parish of Peterhead and county of Aberdeen. The village of Boddam is part of the estate, the complainers and the other inhabitants being, with one or two exceptions, the occupants of houses therein as tenants of the respondent. There is a harbour on the estate, situated about a quarter of a mile to the northward of the village. The complainers are all fishermen, and they have now as individuals, ‘and also as a committee elected by the fishermen of Boddam for transacting the fishing affairs of the village of Boddam,’ presented the present note of suspension and interdict, in which they seek to have the respondent interdicted ‘from troubling, molesting, or interfering in any way with the complainers and the other fishermen belonging to the village of Boddam, in laying up for the winter season, beaching, or taking their boats above high water mark at or near the harbour of Boddam, upon the ground coloured blue and green in the plan or sketch herewith produced and referred to, and marked as No. 7 of process.’ After the note was passed and the record was closed a proof was allowed to both parties, which has now been taken at considerable length.

The ground coloured blue and green upon the plan lies to the west or north-west of the present harbour of Boddam—the part coloured blue being separated from that coloured green by a road from the bed of the harbour to the high road leading to the village. Both pieces of ground are above highwater mark, and consist of shingle, and are well adapted for beaching boats during the winter season. Indeed, no other ground at all adapted for the purpose exists in the neighbourhood so convenient—or indeed at all convenient—for beaching the boats belonging to the village; and it is proved that in the present exposed condition of the harbour it is necessary for the safety of the boats during the winter to draw them up on the beach above the reach of the tide.

It appears from the proof that until the extension of the harbour in 1849, after the passing of the Act 8 and 9 Victoria, cap. 25, (to be afterwards noticed) the boats were comparatively few in number, and the ground coloured green appears, for at least thirty years prior to that date, to have been regularly used, and to have been amply sufficient for beaching all the boats in winter. After the extension of the harbour, however, Boddam became a regular herring fishing station, and the number of boats increased, and in addition to the ground coloured blue, the ground coloured green has ever since been more or less used as beaching ground by the fishermen of the village. Of late years it seems to have been fully occupied in this way in the interval between the close of one herring fishing season and the commencement of the next, vix., from the end of September till the following month of July. During the fishing season both pieces of ground are let by the proprietor as curing stations, and occasionally part of the blue ground is, by permission of the proprietor, used for shipbuilding.

The ground in question is undoubtedly the property of the respondent Mr Aiton, who is asserting and maintaining his right of property, and has intimated to the fishermen that without his permission, and without making such payment as shall be agreed upon, no person is to be allowed to beach a boat upon the said ground.

The right of property being clearly in the respondent, the complainers must, in order to succeed in their present complaint, establish that they have by grant, prescription, or statute acquired a right to use the ground irrespective of the respondent's permission,

(1) The complainers do not aver that they or any of the fishermen of Boddam have obtained from the proprietor or his predecessors any written grant expressly entitling them to use the ground for beaching their boats, but they maintain that under their written titles to their houses, as explained and defined by immemorial usage, they have the right now claimed by them. The so-called titles are however merely minutes of agreement for leases between the fishermen and the successive proprietors of the estate. Only copies of these minutes are produced, but the parties have agreed to hold these as equivalent to the originals. It is necessary to explain in detail the nature of these agreements.

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The earliest agreement on which the complainers found is a minute entered into in 1830, between Robert “Robertson, them the proprietor of the estate, and a large number of the fishermen in the village, by which he agreed to grant to them leases of their respective houses for twenty-one years from Martinmas 1830, with the privilege of fishing for white fish, as then presently possessed by them, and also of the scalps within the flood mark for laying down their mussels and other bait, and also with the privileges, and roads, and accesses, and of the rocks for laying down and winning their fish as then enjoyed by them, for the annual payment of £1, 5s. per annum for the first ten years, and £1, 7s. 6d. for the last eleven years of the lease ‘in name of rent or tack duty,’ and in the event of the herring fishing being carried on at Boddam during the lease, the fishermen agreed to pay for each boat employed in the said fishery the one-half the same rates of duties as might be payable at the time for the herring boats employed at Peterhead. The proprietor further reserved full power to use the harhour for loading and shipping all sorts of goods and merchandise during the lease,—to regulate and improve the old fishing village, and to lay off stances for building additional houses as he should see proper, and also to build additional harbours at any places on the shore of Boddam he should think fit. At the end of the lease the roofs, doors, and windows of the houses were either to be paid for by the proprietor or removed by the fishermen. In 1832 regulations were issued by the proprietor to be observed by the fishermen who had been parties to the agreement, and these seem to have been acted upon by all concerned.

At that time the harbour of Boddam appears to have been inconveniently situated, and unsuited to the requirements of the district. The fishermen, however—who had previously been in use during the herring season to go to Peterhead and other fishing stations—became desirous that Boddam itself should become a herring-fishing station, and should accommodate the boats, not only of the local fishermen, but of strangers, during the herring season, and should also be made available for larger vessels loading and unloading goods. To secure these results a new harbour was essential. A new agreement was accordingly, in 1838, entered into between the tenants of the houses and Mrs Gordon (the daughter and successor of Mr Robertson), and her husband, setting forth inter alia the agreement of 1830, and that the fishermen of the village had applied to the proprietors to erect a new harbour ‘in order to afford a greater protection to the fishing boats, and more particularly to furnish more extended accommodation for prosecuting the herring fishery at Boddam than at present exists, it being the intention of the fishermen to pursue the said fishery at Boddam rather than at distant stations as has heretofore been practised by them, and Mrs Gordon and her husband being desirous to encourage the establishment of a herring-fishery at Boddam, and to erect such a pier or breakwater as, while it would afford the protection and accommodation asked for by the fishermen in the said village, and be sufficient to accommodate other fishermen and curers who may be induced to come to Boddam to fish for herrings during the fishing season, would also accommodate vessels for the purpose of loading and unloading cargoes therein, and for the other general purposes of a harbour, have agreed to extend the said present lease to the further period of seven years.’ They also agreed to lay out a sum of money in the erection of the said pier on a site and according to a plan which had been communicated to and approved of by the fishermen, and both parties homologated the agreement of 1830 and the regulations of 1832, and became bound to extend the lease for seven years from and after Martinmas 1851. Each of the fishermen became hound to pay 10s. a year of additional right, during the currency of the original lease, i.e., to pay £1, 15s. for each of the first ten years of the original lease then unexpired, and £1, 17s. 6d. for each of the remaining eleven years of that lease, and £1, 17s. 6d. during the seven years' extension of the lease. It was also agreed that the fishermen should have rent, during the currency of the said lease,’ to use the said pier, or breakwater, and harbour, and beach enclosed thereby, as well as the old harbour of Boddam, for the herring fishing, as well as for the white fishing, as occasion might require, without any dues being chargeable for their herring boats, and other boats employed at the said fisheries of Boddam. But the proprietors were to have power to levy such rates as they might consider reasonable on all vessels and boats entering the harbour not belonging bona fide to the fishermen resident in the said village of Boddam paying the rents herein before-mentioned. The proprietors reserved to themselves the full use of the harbour, power to make and alter rules and regulations of the government of the harbour, and with reference to the berthing of ships, vessels, and boats, and the full and absolute right of property in the harbour and shore, and in the rates and duties to be charged.

In consequence of this agreement Mrs Gordon and her husband appear to have constructed a new pier which still exists and forms part of the present harbour, and the rents stipulated, which, as the foregoing narrative shows, included all necessary harbour accommodation, both for the herring and for the white fishing, continued to be paid to Mr and Mrs Gordon and to the Earl of Aberdeen, who bought the property in 1839, down to the expiration of the extended lease in 1858, and for some years thereafter—the rent during the last eighteen years being, £1, 17s. 6d. It will be observed that the written title under which the fishermen thus held their houses and used the harbour was a mere title of tenancy, which was to come to an end in 1858, and which, if continued after that date, was continued merely by tacit relocation, and could he terminated by the landlord at the expiration of any year. Even assuming, therefore, that the complainers could establish that for time immemorial they had beached their boats upon the ground in question, they cannot merely by possession upon such a title be held to have acquired a permanent right to continue the occupation of the beach against the will of the proprietor.

(2) The complainers, however, maintain the they have a servitude right to beach their boats there, on the principle which regulated the decision in the Eyemouth case ( Home v. Young, 9 D. 286), viz., that as inhabitants of the village of Boddam they and their predecessors have, by immemorial possession, acquired right for the whole community to beach their boats upon the ground in question. This contention appears to me to be untenable. The principle of the Eyemouth case is not applicable to the present case at all. The village

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of Boddam is not a burgh of barony or a corporation of any kind. It consists merely of houses belonging to the proprietor of the estate on which they are built, and let by him to tenants. The occupancy, therefore, of these houses by the fishermen, without which they could never have had the alleged possession of the beach, having been merely temporary and under an express contract of lease with the proprietor, is very different from the title and possession founded on in the cases of Eyemouth and Dysart, and similar cases. In all of these it was held that where a burgh territory has been erected into a royal burgh or a burgh of barony the burgh thus incorporated is capable of acquiring for the community, by and through the possession of individual burgesses and inhabitants, a right to use the territory for certain public purposes, although the feudal title thereto might still remain in the crown or in the baron, and that the right of use so acquired may be enforced, not only by the community against encroachment by the baron or third parties, but by individual inhabitants against the magistrates of the burgh, in the event of their attempting to alienate the property, or to convert it to uses inconsistent with the enjoyment of the community. There is in the present case no corporation or community capable of acquiring such a right, either directly or indirectly, through the possession of the inhabitants. I am therefore of opinion that the first plea in law for the complainers, viz., that the Acts complained of ‘are a violation of the rights possessed by the complainers at common law, and enjoyed by them for immemorial time,’ is not well founded. And if this view be sound, it is unnecessary to decide whether the servitude claimed by the complainers is a servitude recognised by the law of Scotland, or whether the complainers are entitled to claim such a servitude on behalf of the general body of fishermen of the village of Boddam.

(3) The complainers, however, maintain that they have right to beach their boats on the ground in question in respect of the provisions of the Act 8 and 9 Vict., cap. 25. They allege that by that statute ‘the right of fishermen to beach their boats on the space specified in the preceding article was expressly recognised and provided for,’ and also ‘that the spaces above referred to are within the limits of the harbour of Boddam, as defined by the Act.’ The complainers are in error in saying that this alleged right of the fishermen is by the Act expressly recognised and provided for. No such right is referred to in the Act. The complainers' counsel, however, explained at the hearing that the following entry in the schedule of tonnage dues appended to the Act, viz.:—‘III. For all boats laid up at Boddam for the winter, 5s.,’ must be read with reference to the agreement of lease current at the date of the Act (1845) and to the usage then in force, by which the boats were then in use and had from time immemorial been in use to be beached upon the ground coloured blue. And they contend that the proprietor (Lord Aberdeen), by obtaining the Act for the enlargement and improvement of the harbour, with power to levy the tonnage dues therein specified and particularly quoted, became bound to find ground for laying up boats in winter, that this obligation is now incumbent on the respondent as proprietor of the estate, and that the Act of Parliament thus distinctly recognises the right of the fishermen to beach their boats at or near the harbour on the ground immemorially used for that purpose, whether within the limits of the harbour or not. They also say that the respondent has for some years been exacting 5s. for each boat beached, expressly as beaching dues under the Act, and that he has thus interpreted the Act in their favour, and that he is bound to supply the necessary accommodation. I do not think that this is the sound construction of the statute. Although the harbour in its present state may be unfit for the protection of boats laid up therein during the winter season, it appears from the map, plan, and sections of the proposed improvements lodged in the Sheriff Clerk's office at Aberdeen, with reference to the bill which ultimately was passed by the Legislature, that a much larger and more complete work was contemplated, involving the excavation of a large quantity of rock, the extension of the then existing pier, first in an easterly direction, and then at right angles thereto in a southerly direction, and the construction of a breakwater still further south to protect the proposed entrance to the new harbour. A large open space would thus have been provided within the harbour, and under the protection of the pier and breakwater, and it was apparently with reference to the harbour thus improved and extended that the dues for laying up boats at Boddam in winter were to be charged under the schedule. There seems to be no warrant whatever, either under the enacting clauses of the Act of Parliament or under the schedule, for holding that any right on the part of the complainers to lay up their boats in winter on the respondent's lands above high-water mark is recognised by the Legislature; and the fact that the contemplated harbour has never been fully constructed will not confer upon them any such right. Nor can the erroneous description of his charge for beaching the boats, as being dues under the Act, introduced by the respondent into some of his more recent receipts granted to the fishermen, alter the true construction of the Act.

It appears that in 1865 Lord Aberdeen, shortly before the sale of the property, instead of charging the fishermen (whose leases had all expired in 1858) a slump rent of £1, 17s. 6d. for their houses, and for the use of the harbour and beaching, subdivided the charge as follows, viz.:—

Each house yearly,	£1	2	6
Each herring boat fishing,	0	5	0
Each do. beached,	0	5	0
Each white-fishing boat,	0	5	0
	£1	17	6
Each boat for light dues., i.e., for lighting the harbour,	£0	2	6

Some of these are no doubt harbour dues, but neither the house rent, nor the lights, nor the charge for beaching, come under that category.

(4) The complainers maintain, however, in the last place, that the ground in question is, in point of fact, within the limits of the harbour as defined by the Act, section 1; that boats beached there are truly ‘laid up’ in the sense of the Act, and that the respondent is therefore bound to accommodate them on said ground for payment of the statutory charge of 5s. The limits of the harbour, as described by the Act, are—‘Extending southward as far as the island or peninsula on which the Buchanness Lighthouse is erected; eastward as far as the north-east point of the said island or peninsula,

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and from thence in a north-easterly direction until it join a line from the beach four hundred yards distant from the pier delineated in the plan hereinafter referred to, and marked therein, “present pier,” and including the present boat harbour, and also all Mugie Rocks opposite the proposed entrance delineated on the said plan.’

It is plain, both from the language of this section and from the notice plan therein referred to, that the boundaries extending southward and eastward are not straight lines, but follow the high water mark along the shore, commencing at the then existing pier, and extending round the bay to the north-east point of the peninsula referred to. The north-easterly boundary, being in clear water, is obviously a straight line, as is also the line which joins it from the beach. The complainers maintain that the starting-point of the line from the beach is to be, not at the pier, but at a point on the beach four hundred yards to the west or north-west of the extremity of the pier as that existed in 1844, and that in this way the ground coloured green and blue which lies between this assumed point and the extremity of the pier is brought within the limits of the harbour, and that they have thus right to insist upon their boats being beached in winter upon the said ground. This construction of the statute appears to me to be unnatural and erroneous. I think that the line from the beach is to start from about the extremity of the then existing pier, and is to be continued so as to include the rocks delineated in the plan opposite the proposed entrance to the new harbour until it meet the line running in a north-easterly direction from the peninsula. In short, the precise direction of the two lines is to be ascertained by describing a circle, with the extremity of the old pier as a centre, and a radius of four hundred yards, and drawing a tangent from the north-east point of the peninsula to that circle. That tangent will be found to run in a somewhat north-easterly direction from the north-east point of the peninsula. In this way it will be seen that no part of the ground in dispute can be held to fall within the limits of the harbour as described in the Act of Parliament.

On the whole, it appears to me that the complainers have failed to establish any of the grounds on which their suspension is laid, and that the same must therefore be refused, with expenses.”

The complainers reclaimed.

At advising—