Scottish Court of Session Decisions

These were two actions of declarator of right to foreshore on the north bank of the Clyde in the parish of Wester or Old Kilpatrick. The pursuer in the one case was Mr Buchanan of Auchintorlie, in the other Mr Geils of Dumbuck. Both these properties at one time formed parts of the barony of Colquhoun. Mr Buchanan, the pursuer in the Auchintorlie case, founded upon the following titles:—The barony of Colquhoun, according to a charter of resignation in favour of Archibald Edmonstoun of Duntreath, dated 26th July 1732, the earliest charter preserved, is described as “Comprehenden terras de Mains, Miltoun, Midletoun, Overtoun, Nethertoun, Chapletoun, Barnhill, Connelltoun, Dunerboak, Auchintorlie, Spittle, et Dunglass, cum maneriei loco de Dunglass molendino terris molendinariis multuris et ejusd. sequelis piscationibus et lie zairs in fluvio de Clyde, cum omnibus aliis earundem pertinen cumq. decimis rectoriis et vicariis totarum predict, terrarum molendini terrarum molendinariorum piscationum aliorumque predict.” In 1812 the pursuer's predecessor acquired from Sir Charles Edmonstoun of Duntreath the lands of Dunglass, part of the barony of Colquhoun, the description in the disposition being “All and Whole the farm and lands of Dunglass and Little Mill, Castle, and shore ground thereof, with the whole houses situated thereon, bounded on the north by the other lands of the said Archibald Buchanan, on the south by the Clyde, on the east by a feu of the estate of Auchintorlie, belonging in property to Walter Allan in Little Mill, and on the west by Mr Buchanan's lands of Smallburn, lying the said lands hereby feued within the parish of Old Kilpatrick and county of Dumbarton; together also with my right not only to the fishings in Clyde opposite to the said lands now feued, but also my right to the fishings opposite to the lands of the said Archibald Buchanan, to the west between the lands now feued out and my lands of Dumbuck and Milton, possessed by James Brock.” In 1835 the pursuer acquired the lands of Chapeltown, also part of the barony of Colquhoun, the description in the instrument of sasine following on a Crown charter of resignation in his favour being “Totas et integras terras de Connelton, terras de Chappelton, terras de Meikle Overton, et unam quartum partem de Miltoun de Colquhoun per dict. Archibaldum Buchanan de Auchentorlie olim possess, cum piscationibus et lie Zairs in fluvio de Clyde et tota alia pertinen. earundem cum decimis rectoriis et vicariis dict. terrarum omnes jacen. intra Parochiam de Wester Kilpatrick et vicecomitatem de Dumbarton.”

In addition to these titles the pursuer produced a renunciation executed in his favour in 1828 of a lease of Dunglass granted by Sir Archibald Edmonstoun in favour of Mr Dunlop of Garnkirk, and to which William Dixon, who executed the renunciation, had acquired right. This lease described the ground contained in it as “All and whole that piece of ground at Dunglass, including the ground within the walls of the old castle, and the rock itself upon which the old castle stands, together with the ground going under the name of the shore-grass then last possessed by Robert Miller, tenant in Dunglass.”

The pursuer contended that under his titles he had a right of property extending to the medium filum of the Clyde, and at all events including the ground ex adverso of his estate, and lying between high water-mark and low water-mark. He also averred that the ground between high watermark and low water-mark had been possessed by him as his property for more than forty years. He averred that he and his predecessors “have constantly and without challenge dealt with the said shores and banks as their property, and have from time immemorial exercised their proprietary rights by acts of possession of every kind of which the subject is capable. In particular, they have by

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themselves, by tenants to whom they have let the subjects, and by others having their authority, constantly taken gravel, sand, and soil from the said shores and banks for building and other purposes, and have sold such gravel, sand, and soil to others; they have erected and maintained fences on the said shores and banks below high water-mark; they have constructed drains on the said shores and banks; they have embanked and reclaimed parts of said shores; they have annually cut and removed the reeds and other vegetation growing upon said shores and banks for thatch, litter, and other farm purposes; they have constantly pastured cattle on the sea-greens and other vegetation growing on said shores and banks; they have erected and maintained a pier or landing-place on said shore below high water-mark, and have levied dues from all persons using the same; they have hunted and shot over the said shores and banks, and preserved the game thereon, and have prevented all trespass upon the said shores and banks; and they have exercised their proprietary rights in a variety of other ways. Further, the pursuer in 1853 sold and conveyed a part of said shore below high water-mark to the Caledonian and Dumbartonshire Junction Railway Company, who have since possessed and used the same as part of their line of railway in virtue of said conveyance.”

The pursuer of the other action, John Edward Geils of Dumbuck, was proprietor of the adjacent lands of Dumbuck, which also formed part of the ancient barony of Colquhoun. The infeftment of the pursuer's father, dated in 1815, was in “All and Whole the following parts and portions of the lands and barony of Colquhoun—viz., the lands of Milton of Colquhoun and Curcastown, now called Dumbuck, possessed by James Brock and Mrs Margaret Cook, otherwise Colquhoun, and including therein those parts thereof feued to two vassals at Milton, and feu-duties payable for the same—Item, the lands called Easter, Upper, and Lower Mains of Colquhoun, as now divided into three farms, and possessed by James M'Murrick, William Brock, and Allan Morrison, and to be now all called the lands and estate of Dumbuck, with houses, biggings, yards, whole pendicles and pertinents of the said several lands, and with the fishings and yares in the river Clyde, and all others belonging to the said lands.” The pursuer's infeftment in 1845 was in similar terms. His pleas and averments of possession were similar to those of Mr Buchanan.

Both pursuers asked for decree of declarator “that the ground forming the shores and banks of the river Clyde between high water-mark and low water-mark, ex adverso of the baronies or estates of Dunglass, Chapelton, and Dumbuck, belonging to the pursuers, belongs in property to the pursuers, and is part and portion, or part and pertinent, of the respective lands and estate, subject to the right of Her Majesty the Queen as trustee for public uses.”

The Lord Ordinary pronounced this interlocutor in Buchanan's case:—“Finds the pursuer, in virtue of his titles to the lands libelled, and of the possession by him and his predecessors and authors under and in virtue of said titles for upwards of forty years before the commencement of this action, and from time immemorial, is proprietor of the ground forming the shores and banks of the river Clyde, between high watermark and low water-mark, ex adverso of their said lands, but subject always to any rights of navigation or other rights which the public may have over the same: Therefore finds, declares, and decerns in terms of the conclusions of the summons.”

His Lordship added this note:—…. “There being here no description by boundaries of the lands in question, it is of course necessary to resort to evidence of possession for the purpose of ascertaining the situation and extent of the subjects. One thing, however, appears on the face of the Crown title, viz., that there was a manor place in connection with Dunglass, with fishings in the river Clyde, and that the whole subjects formed part of the barony of Colquhoun, and were granted with parts and pertinents.

“Another fact which appears to me material in considering the effect of such a title, and which admits of no dispute upon the evidence, is that the situation of this manor place of Dunglass is identified with that of Dunglass Castle—an old castle the remains of which still stand upon a rock at the side of the river Clyde, and which is washed by the waters of that river at all states of the tide. The shore ground in question extends up and down the river from this rock, and consists, so far as not reclaimed, of a gently sloping bank covered with grass and reeds, over which the waters of the river flow when the tide is in, and which is left dry as the tide recedes.

The lands of Chapelton appear to have included the three fields to the west of Dunglass, marked Nos. 329, 332, and 333, on the Ordnance map, and were also held, according to the Crown charter, with fishings and yairs in the river Clyde.

I hold it to be settled, by the opinions in the case of Lord Blantyre, 6 R. (H. of L.) 72, although the point was not made matter of judgment, that where a title is silent on the subject, there is no presumption that the foreshore is a pertinent of the land. But I do not think that that opinion conflicts with the doctrine that a grant of lands, bounded either expressly or de facto by the sea or by a navigable river, and with the rights of a barony, is different from a grant of lands bounded by the ‘sea-flood,’ and does not imply any limitation by high water-mark. I have always understood that doctrine to be well established, and I think it stands upon sufficient authority. I refer to the opinions of Lords Gillies and Mackenzie in the case of Macalister v. Campbell, 15 S. 491; of Lord Moncreiff in the case of The Officers of State v. Smith, 8 D. 711, and 6 Bell's App. 487; of Lords Wood and Medwyn in the case of Paterson v. The Marquis of Ailsa,8 D.752;of Lord Ardmillan (concurred in by the Lord Justice-Clerk Hope) in the case of Lord Saltoun, 20 D. 89; of Lord Jerviswoode (whose judgment was allowed by the Crown to become final) in the case of The Lord Advocate v. M'Lean, 38 Jur. 584; and of Lord Kinloch in the case of Hunter v. The Lord Advocate, 7 Macph. 899. The opinion of Lord Moncreiff in Smith v. The Officers of State was expressly adopted in the House of Lords by Lord Brougham, and was not, in my view, questioned by Lord Campbell. In these cases the effect of such a grant without possession was not decided. It was unnecessary that the point should be decided, and it could not be decided where the Crown was not a party. But

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they satisfy me that there may be Crown grants which without expressly conveying the shore, and without specifying the ‘sea’ as a boundary, must be held to import a right of property in the shore, subject to the recognised public uses, and this independently of proof of prescriptive possession. I do not go over the authorities. They are sufficiently explained by Lord Wood in the case of Paterson v. The Marquis of Ailsa. The effect to which I think they are entitled in this case is, that if the proved facts and circumstances negative the belief that a limitation by high water-mark would be consistent with a true interpretation of the grant, the grant must be held as including the foreshore in so far as alienable property.

Not out of place is it to note that such ground is alienable subject to the known public uses, and that in the present case it is not alleged by the Officers of the Crown that any of the recognised public uses are being threatened by the pursuer. The title of the Crown to defend the public interest in the shores is well settled by the case of Smith v. The Officers of State ( 6 Bell's App. 487). But this case is not defended, so far as appears, in order to secure the ordinary public uses. A decision in favour of the Crown would not protect the interests of those members of the public who are represented by the Crown witnesses. It would not secure to the public of Dumbarton and Bowling the privilege of sporting upon the shore ground in question, or of cutting reeds upon it; nor would it secure to the bargemen of Paisley the right of resorting thither in their boats for the purpose of taking sand. It is not contended that these are uses which the Crown is bound to protect. On the contrary, it is apparent, and was not disputed, that if the ground belongs to the Crown, it will be in the power of the Crown to dispose of it to the Clyde Trustees for the purpose of being made into timber-ponds, as proposed. It is hardly necessary to point out that the interposition of such works between the river and the pursuer's lands would be not less destructive of the rights claimed as public rights by the defender's witnesses than of the right of fishing granted to the pursuer with his lands.

Keeping in view, then, the situation of the subjects, and the character of the title, I inquire, How has this shore been possessed and dealt with? And the first thing I find with regard to Dunglass is that in 1812 the lands of Dunglass were expressly disponed by Sir Charles Edmonstoune—with the ‘castle and shore ground thereof’ and fishings as bounded ‘on the south by the Clyde.’ Infeftment followed on this disposition, and the pursuer's sasine of 1834 is in the same terms.

Of course, this subordinate title not being confirmed by the Crown, is not of itself a sufficient title to exclude the Crown from disputing the pursuer's right. But it is evidence of possession tending to show not only the extent of the right which has always been claimed under the Crown grant, but also the kind of right to which the pursuer and his predecessors have ascribed any possession they have had. I hold such infeftments to be not only sufficient as a basis of prescription against the Crown under the Act of 1617, but to be themselves acts of possession proper to be considered along with other evidence in identifying the subjects described in the Crown charter, and thus in explaining that charter. The competency of referring to possession for the purpose of interpreting title, as well as for the purpose of fortifying title, admits of no dispute. (See opinion of Lord Curriehill in Lord Advocate v. Sinclair, 3 Macph. 994, and of Lord Deas in the case of Baird v. Fortune, 23 D. 1081.)

[His Lordship then referred to the evidence of facts of possession.]

In short, the ground has been used and possessed by the proprietor of Auchintorlie at his pleasure without objection on the part of the Crown, and without any complaint by anybody that the rights of the Crown were being encroached upon. If it was not as strictly enclosed and watched as it might have been, I am satisfied that it was as well attended to as was thought necessary, and that none of the proprietor's acts in assertion of his rights were resisted or questioned.

It is said, however, that members of the public also made certain uses of the shore. In so far as these may have been among the proper public uses to which the shore is always subject, the fact of such use would not be inconsistent with the claim of Mr Buchanan to have the shore recognised as included in his title; and the decree sought in the present action would not interfere with them. And in so far as these uses were of a different character, or were uses by persons like Strathearn, who considered that the ground belonged to the public, I do not see how the proof of such use can give much aid in deciding between the Crown and the pursuer the true construction of the Crown grant. It appears to me that much of the evidence adduced on behalf of the Crown is explained by the fact that, apart altogether from the question of property, there was in the case of open sea-shores recognised public rights which will always account for a considerable amount of public use without affecting the measure of the proprietor's infeftment. The right of passage from port to port is said to be one of these public rights. (See the opinions of the Lord Justice-Clerk and Lord Moncreiff in Smith v. The Officers of State.) In so far as the banks of a tidal and navigable river like the Clyde fall within the same rule, a similar explanation of public resort must be admissible. Such public resort will not, in my opinion, settle the question between the Crown and the proprietors of the land, what is the extent of the proprietor's infeftment according to the true intent and meaning of the original Crown grant? Unless it can be shown that the assertions of right by the proprietors of Auchintorlie were insufficient in themselves to put the representatives of the Crown upon their inquiry, or were not sufficiently maintained to show that the ground in question was being held and dealt with as part of their property, occasional uses by members of the public, not interfering with the enjoyment of the proprietor's rights, will not enable the Crown now to dispute a right which has hitherto been openly asserted without question.

But what are the uses alleged to have been enjoyed by the public? Are they indicative of a general denial of proprietary rights to the owner of the estate of Dunglass, or merely of the assertion of public rights? The evidence is that persons from Dumbarton and Milton resort

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thither on holidays for the purpose of shooting sea birds; that a man named Clark had gone there and cut some of the reeds; that sea-weed and wrack had been gathered upon it; and that certain bargemen from Paisley, who appear to have taken sand from any part of the shores where they could get it (including the Erskine shore), resorted to the sand bed below Dunglass Castle for the purpose of filling their barges. The witnesses who were called to speak to these uses were not of the class which I should have expected to see if there was any public dispute of Mr Buchanan's title. They do not represent the immediate neighbourhood of this property. Not a few of them appear to me to be unreliable witnesses in a question of the kind raised…. Of course the nature of the ground made it impossible to enclose it effectually, or even to watch it in such a manner as to assert upon all occasions a proprietor's rights.

The taking of sand appears to have been by no means generally claimed or understood to be free. The evidence of such a witness as Thomas Edgar (a builder and merchant at Bowling, and who required sand for his business) is, in my opinion, of more weight than that of the witnesses from the other side of the river who deal in sand, which they take wherever they can get it, and who obtain access to the shore by a way which it is difficult to check.

It was urged that the evidence of public resort to the shore was at least sufficient to negative exclusive possession by the proprietors of Auchintorlie. If the question in this case were purely a question of prescription, I should have thought the tolerance of so much coming and going as appears to have existed very important. In the question, however, as to what has been the construction of this title acted on by the parties to it, I cannot think that anything in the evidence is at all inconsistent with the construction contended for by the pursuer, or is sufficient to deprive of its natural effect the proof that all kinds of possession of which the subject was capable have been openly claimed and enjoyed by the pursuer and his predecessors without dispute or complaint.

On the whole, I think that the evidence of possession by the proprietors of Auchintorlie is sufficient to establish the pursuer's right, even in a question of prescription under the statute of 1617. But it is still more conclusive as explaining the title; and I think that the evidence of disturbance adduced on behalf of the Crown is not sufficient, either in kind or degree, to enable the Crown to dispute the meaning of the grant.

I therefore find, declare, and decern in terms of the conclusions of the summons, and with expenses.”

In Geils' case his Lordship pronounced an interlocutor in the same terms, adding this note—…. . “I think it clearly proved by the documentary evidence produced, as well as by the parole testimony, that for upwards of forty years the shore ground in question has been publicly advertised and let to tenants by the pursuer and his predecessors as a part of the estate of Dumbuck; that interdicts have been taken out by them against trespassers upon it; that the exclusive right to take sand from it has been claimed by them, and recognised by the neighbours on that side of the river; that cuttings and embankments have been formed upon it by them with materials taken from the foreshore; and that when a rifle range was formed upon it in 1871, and subsequently extended, the necessary mounds, firing-places, and accesses were constructed upon it by the leave of the proprietor of Dumbuck as proprietor of the ground. The soldiers at Dumbarton Castle, as well as members of the public, were on various occasions excluded from it. The occupancy of it by the proprietor of Dumbuck was openly and invariably ascribed to his right by property. His ownership, or reputed ownership, was recognised in the book of reference and plans connected with the Clyde Navigation Bill in 1839; and so generally was his right recognised that even among those members of the public who claimed public rights over it it was known as ‘the Colonel's shore.’

“His fishing rights were exercised upon it. He did his best to preserve the game upon it. The natural islands upon it were his, and were possessed by him or his tenants; and unless he had banked it all round, I do not see what he could have done that he did not do to assert his right of property over it.

A good deal of evidence was no doubt adduced to show that this shore (which extends eastwards from Dumbarton to the Milton Burn) was resorted to by members of the public for sport and recreation. I should have been much surprised if such evidence had not been obtainable.

In the immediate neighbourhood of a town like Dumbarton it would be impossible to exclude the public altogether without some complete alteration of the shore, such as has been proposed by the Clyde Navigation Trustees to be carried through with the sanction of the Board of Trade. For the reasons explained in the case of Buchanan, I think that the use of the shore by members of the public for purposes of passage and occasional recreation is not a sufficient challenge of the right of property. But apart from that, I must observe that in this case a large part of the evidence upon such use goes too far. It shows that the persons who so resorted to the shore did not confine themselves to the ground below high water-mark, but thought themselves entitled to use the shore up to the top of the embankment. Even in the case of Mooney, whose acquittal of the charge of trespass was much founded on, it appeared that he was above high water-mark. It was not disputed on behalf of the Crown that the pursuer's property extended beyond the embankment, at least to high-water of ordinary spring tides. On the contrary, in order to explain away some of the acts of possession proved by the pursuer, it was maintained that the best part of the grass outside the embankment was above high water-mark, and that this accounted for the shore ground being occupied by the proprietor and his tenants for the pasture of cattle.

Evidence was also led, as in the case of Buchanan, to show the cutting of reeds by one or two persons on this shore ground, and also the taking of sand from it by persons from the other side of the river. But as that evidence was not different in any material respect from that which was there adduced, and is open to the same observations, I think it unnecessary to refer to it further than to say that I think it insufficient in weight and character to throw doubt upon the

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pursuer's rights. I do not question the title of the Crown to defend the public interest in the shores. But that public interest, in so far as represented by the defender's witnesses, would not, in my opinion, be defended by a judgment that would give to the Crown rather than to the proprietor the right of sanctioning the alterations proposed in the Clyde Trustees' plan. The receipt, with the other evidence of the pursuer's possession, appears to me to be much more weighty and unequivocal than proof that persons from Paisley were able to get access to the shore in boats and to carry away sand from it.

The result of the evidence, in my opinion, is very clearly in favour of the pursuer's claim, as I think that the title of the pursuer, explained and supported as I hold it to be by the necessary possession, is sufficient to include, and iucludes, the shore ground in question.

In this case also, therefore, my judgment is for the pursuer, with expenses.”

The Lord Advocate reclaimed. In the course of his argument he was referred to the terms of the 34th section of the Conveyancing Act of 1874, by which the period of prescription is reduced from forty years to twenty for all the purposes of the Act 1617, cap. 12. He argued that that limitation did not apply to such a case as this, for here the possession for the prescriptive period was founded on as explicative of the terms of an ambiguous title, and must therefore be continued for the period of forty years; the limitation in the statute was applicable solely to cases of possession upon a clear title.

The Lords made avizandum.

At advising—