Scottish Court of Session Decisions

The pursuer in this case was the Earl of Stair, proprietor of the barony of Kilhilt, comprehending, inter alia, the five merk land of Drumore, lying in the parish of Kirkmaiden and sheriffdom of Wigtown. The defenders were Harry George Austin of the Archbishop's Palace, Canterbury, and others, the lessees from the Crown of the oyster fishings in the Bay of Luce, in the shire of Wigtown, and William Biggam and others, certain fishermen who resided in Drumore.

The lands of Drumore are situated on the south-western side of the Bay of Luce, and a point projecting from the said lands in a northeasterly direction into the sea forms a smaller bay, which is called Drumore Bay.

In 1809 Alexander M'Douall, younger in Curghie, entered into an arrangement with the Earl of Stair of that time, as proprietor of the said lands and barony of Drumore, by which he undertook to construct a pier or quay and a gravel bank running out from the shore a little to the westward, which should form a tidal harbour and be of use for the safety and mooring of vessels, and for the discharge and trading of cargoes—there being an obligation on the Earl of Stair to grant him a tack of the same. In terms of this arrangement, the quay so having been constructed, a tack was granted, dated 19th March 1822, for ninety-nine years from 1811, by the Earl of Stair in M'Douall's favour, of the quay or harbour of Drumore, and ground and houses connected therewith, with power to the said Alexander M'Douall and his foresaids to levy anchorage and reasonable dues for such vessels as might take the benefit of his works for their safety or for discharging their cargoes. The stipulated rent was £5, the tenant being bound to maintain the works and houses and haill other buildings in proper condition; there was also a power of removal at any time on certain conditions. This tack having passed by successive assignations into various hands, came by assignation, dated 21st July 1842, into the hands of the Earl of Stair.

The present pursuer averred that he and his predecessors, since the original tack to M'Douall, had fixed and levied dues on vessels using the quay and harbour, and goods loaded or discharged there, according to rules and regulations published from time to time, and that the dues were necessary to meet the expenditure connected with the harbour and access thereto. He further averred that the defenders Harry Austin, Captain George Austin, and Thomas Gann, as joint lessees from the Crown of the oyster-fishings in the Bay of Luce, employed several decked vessels which used the quay and harbour, and that the defenders William Biggam, the owner of the “Vigilant,” and others, fishermen engaged in the oyster-fishing, and residing at Drumore, also used the said quay and harbour, but all refused to pay the aforesaid dues. It was to enforce payment of them that he raised the present action, and the conclusions of his summons were (1) that it should be declared that the quay and adjacent shore of the lands of Drumore on both sides of the quay, and the access to the said quay and shore through the said lands, belong to and were the property of the pursuer, and that the defenders had no right or title to moor their vessels or boats by attaching them to the quay at Drumore, or to the stakes, buoys, anchors, or works thereon, or on the said shore now in connection with the said harbour, or to use the said quay, stakes, buoys, anchors, or other works, or the said access to the quay and adjacent shore, for the purpose of trading or discharging these vessels or boats, or otherwise as a landing-place in connection with the fishing in the Bay of Luce; and that the defenders should be interdicted and “discharged from mooring their vessels or boats at the said quay, or to the said stakes, buoys, anchors, or other works, and from using the said quay and access thereto, and to the adjacent shore, through the pursuer's lands, for the purpose of loading or discharging their vessels or boats, or otherwise as a landing-place in connection with the fishery in the Bay of Luce.”

He pleaded that (1) being proprietor of the quay at Drumore and adjacent lands, he was entitled to decree of declarator as concluded for; and that (2) the defenders having no right or title, ought to be interdicted from using the said quay or access thereto.

The defenders, on the other hand, averred that prior to the time when the defenders leased the oyster fishings from the Crown, the local fishermen and others from a distance had for years carried on the oyster dredging in the Bay of Luce; that the pursuer's predecessors had not, and the pursuer had not, any royal or parliamentary grant of harbour or other title authorising the erection of a harbour or the levying of harbour dues. Further, that although dues on coasting vessels using said quay had been exacted for some years, no dues had been paid by the owners or users of fishing-boats, and no demand was ever made for payment of dues on such boats till recently. The defenders, like the other boat-owners, moored or anchored their oyster fishing-boats, which were only ten or fifteen tons burden,

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in the said creek or bay, but these boats very seldom used, and some of them had never yet used, the said quay, and they did not discharge their oysters thereat.

They pleaded—“(1) The pursuer has produced and has no title to sue. (2) The pursuer's statement is irrelevant and insufficient in law to support the conclusions of the summons. (3) The quay in question being erected on and forming part of the seashore, is not the property of the pursuer. (4) The quay in question not having been erected by the pursuer or his predecessors, and neither he nor they having acquired any title thereto, and it not being situated on or forming part of the pursuer's lands, the defenders are entitled to absolvitor. (5) In any view, the pursuer is not entitled to the decrees of declarator and interdict concluded for, in so far as these are directed against the defenders mooring their vessels in the bay and using the seashore for the purpose of loading or discharging their vessels or boats, or otherwise using the shore as a landing-place in connection with the fishings in the Bay of Luce.”

The import of the proof which was held in the case will sufficiently appear from the Lord Ordinary's note and the opinions of Lord Young and Lord Gifford.

On 30th July 1880 the Lord Ordinary ( Lee) pronounced this interlocutor:—“Finds it sufficiently established by the titles produced, and by the possession which has been had under them by the pursuer and his predecessors, that the quay at Drumore Harbour, in the Bay of Luce, and the road leading thereto from the village of Drumore, and also the adjacent shore from which such quay extends, form part of the lands and barony of Kilhilt, belonging to the pursuer, and are the property of the pursuer, and that the defenders, the lessees of the oyster scalps and oyster fishings in the bed of the sea in the Bay of Luce, and others fishing oysters there in their right, have no right or title to use the said quay or road or other property of the pursuer for the purposes of the oyster fishings in the Bay of Luce: To the extent and effect of so finding, repels the defences, and finds and declares in terms of the conclusions of the summons: Grants interdict in terms of the conclusions thereof, so far as applicable to the oyster fishery, and decerns: Quoad ultra finds that no grounds have been established for pronouncing decree in terms of the conclusions of the summons, and particularly that no grounds have been established for excluding the defenders, who are called as fishermen residing in Drumore, from the use of the shore in connection with the fishing of white fish in the Bay of Luce: Dismisses the action excepting to the extent and effect above expressed, and decerns: Finds the pursuer entitled to the expenses of process incurred by him, and remits to the Auditor to tax the account thereof when lodged, and to report.”

He appended this note:—“The Lord Ordinary has been somewhat puzzled how to dispose of this action owing to the general terms used in the conclusions of the summons, and to the fact that no distinction has been taken by the defenders as between the rights of those exercising the Crown's right of oyster fishing and the rights of fishermen generally.

“As the Crown is not called, the Lord Ordinary assumes that no question was intended to be raised by the pursuer concerning the property of the foreshore, or the uses to which it may be subject on the part of fishermen exercising the right of fishing for white fish. He has therefore decided only upon the question raised with the oyster fishers as to their use of the quay.

It appears from the narrative of the tack of 1822, and from the other evidence in the cause, that the quay in question was constructed about the year 1810, under an arrangement by virtue of which it was in the power of the proprietor to remove Mr M'Douall, who constructed it, on paying to him such a sum as he could instruct to have been expended upon it. Subject to this condition Mr M'Douall was promised by the then Earl of Stair a tack of the said quay and houses for ninety-nine years at a moderate rent, not exceeding £5 per annum, with Lord Stair's consent to the levying of anchorage and reasonable dues for such vessels as might take the benefit of the works. The whole of the adjacent lands belonged to the Earl. There was at that time no road leading to the quay from the village, and none of the public could obtain access to the quay, or could get from the quay to the village, without passing through the private property of the pursuer's predecessor. The regulations originally made would appear to have been submitted for adoption and approval to a meeting of masters and owners of vessels, merchants, farmers, &c., held at Drumore on 5th December 1810. But the evidence shows that the power of levying dues, though given originally to the tenants, with warrandice from fact and deed only, has always been exercised by the proprietor or those in his right. There is no evidence that there was at any time a public harbour at Drumore, and it appears to the Lord Ordinary to be proved that the road leading from the village of Drumore to the quay is a private road, constructed and maintained at the expense of the proprietor.

It further appears that no objection has ever been taken on the part of the Crown to the use made of a portion of the foreshore in the construction of the quay. The Board of Trade seems to have been satisfied in 1872 that the quay was private property, and it was not contended at the debate that there is any free port or public harbour at that place.

In these circumstances the question raised by the defenders is, Whether they have right, as lessees of the Crown's oyster fishings in the Bay of Luce, or as otherwise exercising the right of the Crown to the oyster fishings in the sea, to use the quay in question, or to dispute the pursuer's title to it as his private property?

The Lord Ordinary is of opinion that the defenders have failed to instruct any right to the use of the quay. The lease of oyster fishings upon which they found deals with the oyster fishing in the bed of the sea as a distinct patrimonial right; and the Lord Ordinary does not doubt that they may be so regarded. But such a right gives them no title, and the lease does not profess to give them any title, to make use of the private property of the pursuer, or others holding property upon the seashore; nor does it give them any title to question the pursuer's right to maintain the quay as a part of his property—that not being questioned by the Crown, from whom the lease is derived.

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It is quite settled law, in the Lord Ordinary's opinion, that the proprietor of a seaboard estate, held under a barony title, may establish by possession a right to the property of erections on the foreshore, and to the foreshore itself— Agnew v. Lord Advocate, Jan. 21, 1873, 11 M. 309; Colquhoun v. Paton, June 17, 1859, 21 D. 996. And although every right to the foreshore is subject to certain public uses, it is indisputable that the shore may be appropriated; and where it has been appropriated, with the authority, expressed or implied, of the Crown, a separate grant of oyster beds under the sea will not confer a right to make use of the shore so appropriated. Such oyster-fishings may be carried on from any neighbouring port, and imply no right to make use of the adjacent land or property connected therewith.

The case of the fishermen of Drumore generally, however, is different—at least in so far as the use of the shore is referred to in the summons. By the Scots Act of Queen Anne's reign (1705, c. 2) persons fishing for white fish obtained right to the use of the shores for bringing in and unloading their fish. The Lord Ordinary is not aware that this right has been taken away. It does not appear to be repealed by the Fisheries Act of 1868. It is necessary, therefore, in his opinion, to avoid deciding anything which might prejudice a claim not distinctly challenged in this action, although the terms of the conclusions might affect it.

With regard to the claim which the defenders may have to the use of the shore as members of the public, it is only necessary to say that the foregoing interlocutor will not prejudice such claim. It disposes only of the question concerning the defenders' right to use the quay and its adjuncts. Holding, as the Lord Ordinary has held, that these are the property of the pursuer, the case of Colguhoun v. Paton appears to him substantially to decide against the right of individual members of the public to make use of such structures without complying with the proprietor's conditions, and to negative the title of private individuals to complain of such structures as an encroachment.

The Lord Ordinary has found the pursuer entitled to expenses, because although decree has not been given exactly in terms of the conclusions of the summons, the only question really put in issue has been decided in his favour. The pleas of the defenders have rendered it necessary to dispose of that question.”

The defenders reclaimed, and argued—The pursuer here was in the same position as the pursuer in the case of Agnew v. Lord Advocate—i.e., his title was one of barony, without express grant of foreshore. If, then, he was to prevail, he must show either (1) that he had a right to the foreshore; or (2) that he had held exclusive possession of it since 1809. But (1) even if he had a right to the foreshore, he could only use that right in such a way as that it should not interfere with the public rights on the foreshore. Vide Digest, b. 3, t. 8, law 3; Lord Ivory's ed. of Erskine, b. 2, t. 6, sec. 1, note 91, and cases there cited; Smith v. Officers of State, March 11, 1846, 8 D. 711; Agnew v. Lord Advocate, Jan. 21, 1873, 11 Macph. 309. And (2) on the evidence, his possession had not been exclusive, for he had not levied dues from the fishermen, and they had for long attached their boats to stakes. Hagart v. Fyfe, Nov. 15, 1873, 9 Macph. 127; and case of Agnew v. Lord Advocate.

The pursuer, in support of his contention that a proprietor of a seaboard estate who held under a barony title might establish by permission a right to the property of erections on the foreshore and to the foreshore itself, quoted Agnew v. Lord Advocate, Jan. 21, 1873, 11 Macph. 309, and Colquhoun v. Paton, June 17, 1859, 21 D. 996.