Scottish Court of Session Decisions

By feu-contract dated 24th and 31st August 1815 Sir Michael Shaw Stewart, Bart., feued to James Stevenson and others, merchants in Greenock, carrying on business under the firm of the Clyde Pottery Co., “All and whole that piece of ground lying on the north side of the high road leading from Greenock to Port Glasgow, of the following mensurations, viz., one hundred and forty feet in length along the front of the said high road, the like number of feet in length at the back thereof at low water-mark, and five hundred and six feet in breadth on each side from the said high road to low water, amounting in measure to two hundred and eighteen falls twenty-three yards and one foot or thereby, computing each fall to contain thirty-six superficial yards, and bounded as follows, viz., by the said high road on the south; by an intended street of fifty feet wide from the high road to low water-mark on the east; by the river Clyde at low water on the north; and by the ground feued to the Whale Fishing Company on the west, with the teinds, parsonage and vicarage, thereof, and free ish and entry thereto from the said high road, street, and sea, lying within the old parish of Greenock and shire of Renfrew.” Sir Michael was proprietor of the lands and barony of Greenock, of which the subjects formed part, “cum totis fundis et terris intra fluxum et refluxum maris jacen. contigue ex adverso terris de Wester Greenock in quantum eadem sunt boundatæ versus mare.”

Since 1815 the river Clyde has receded, and the low water-mark was in 1882 about 130 feet further north than it was in 1815 The subjects forming the Clyde Pottery were at the date of this action (February 1883) vested to the extent of one-half pro indiviso in George Foster and others (Blyth's trustees), and to the extent of the other half pro indiviso in Robert Blyth and others (Foster's trustees). The Clyde Pottery was in 1882 taken by the Glasgow and South-Western Railway Company under powers contained in their Act of Parliament, and compensation was claimed by Blyth's trustees and Foster's trustees on the footing that their property extended to the low watermark

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of 1883 and not that of 1815. Sir Michael Shaw Stewart, Bart., successor of the disponer of the lands, as proprietor of the lands and barony of Greenock, maintained that he was the proprietor under his title (above quoted) of the piece of ground between the low water-mark of 1883 and the low water-mark of 1815. In these circumstances this action was raised against him by Blyth's trustees and Foster's trustees to have it declared that they had “the sole and exclusive right and title in and to All and Whole that piece of ground lying on the north side of the high road leading from Greenock to Port Glasgow, and bounded as follows, videlicet, bounded by the said high road on the south; by a street of fifty feet wide from the high road to low water-mark on the east; by the river Clyde at low water-mark on the north; and by the ground feued to the Whale Fishing Company on the west, with the teinds, parsonage and vicarage, thereof, and free ish and entry thereto from the said high road, street, and sea, lying within the old parish of Greenock and shire of Renfrew: And that the defender has no right or title in or to the said piece of ground or any portion thereof.”

The pursuers averred that the piece of foreshore in dispute had been possessed and used as their own exclusive property by them and their predecessors.

The defender, in addition to relying on his title quoted above, produced a disposition in his favour by the Commissioners of Woods and Forests, dated 25th May 1858, by which he had acquired all right to the whole alveus of the river between high and low water-mark ex adverso of all and whole the lands of Easter Greenock.

The pursuer pleaded—“(1) The pursuers are entitled to decree of declarator as concluded for, in respect of (1st) the terms of their title; (2d) et separatim, the terms of their title and possession had thereon. (2) The property of the pursuers being bounded on the north by the river Clyde at low water-mark, they are entitled to all alluvial ground formed above the said low watermark ex adverso of the property possessed by them.”

The defender pleaded—“(3) The title founded on by the pursuers being a bounding title, and the measurements therein set forth being taxative, the pursuers are not entitled to decree of declarator as concluded for. (4) The ground in question being the property of the defender by virtue of his titles, and never having been feued out by him or his predecessors, he should be assoilzied with expenses. (5) On a sound construction of the feu-right founded on, no right of property is thereby conveyed in any ground to the north of the then existing low water-mark.”

The Lord Ordinary ( Lord Lee for Lord Adam) found, declared, and decerned in terms of the conclusion of the action.

“ Opinion.—The pursuers are proprietors of a feu aoquired by their predecessors from the late Sir Michael Shaw Stewart, the predecessor of the defender, in virtue of a feu-contract dated 24th and 81st August 1815.

The feu is described therein as follows:—‘All and Whole that piece of ground lying on the north side of the high road leading from Greenock to Port Glasgow, of the following mensurations, viz., 140 feet in length along the front of the said high road, the like number of feet in length at the back thereof at low water-mark, and 506 feet in breadth on each side from the said high road to low water, amounting in measure to 218 falls 23 yards and 1 foot or thereby, computing each fall to contain 36 superficial yards, and bounded as follows, viz., By the said high road on the south; by an intended street of 50 feet wide from the high road to low water-mark on the east; by the river Clyde at low water on the north; and by the ground feued to the Whale Fishing Company on the west, with the teinds, parsonage and vicarage, thereof, and free ish and entry thereto from the said high road, street, and sea, lying within the old parish of Greenock and shire of Renfrew.’

It will be observed that there is here a description of the subjects both by measurement and boundaries, and that the boundary on the north is said to be ‘the river Clyde at low water.’

It does not appear that there was at the date of the feu-contract any discrepancy between the description by measurement and the description by boundaries. But what has taken place is that the river Clyde has receded about 130 feet to the northward, thus leaving a piece of ground of that breadth between what was the low watermark of the river at the date of the feu-contract and at the present date. This piece of ground is the subject of dispute in the present action, and is claimed both by the pursuers and by the defender. The immediate cause of the action would appear to be that the Glasgow and South-Western Railway Company have taken the property belonging to the pursuers, and it has become necessary now to determine whether or not it includes this piece of ground.

The pursuers aver that they and their predecessors have possessed and used the piece of ground in question as their own exclusive property; but they do not say for what length of time, and having regard to the nature of the pleas maintained by the parties, I do not think it necessary that a proof should be allowed on that matter.

At the date of the feu-contract, the granter, Sir Michael Shaw Stewart, was proprietor of the lands and barony of Greenock, of which the subjects formed part, ‘cum totis fundis et terris intra fiuxum et refluxum maris jacen. contigue ex adverso terris de Wester Greenock in quantum eadem sunt boundatæ versus mare.’ He had therefore a grant of the shore ex adverso of the subjects down to low water-mark; but whether he had or not he cannot be allowed to challenge his own grant. It appears to me, therefore, that when Sir Michael granted the feu-contract, the subjects in which are described as bounded by the river Clyde at low water on the north, he parted with every particle of property he had on the shore ex adverso of these subjects.

I think it is also clear that the parties to the contract intended that the feuar should in all time have a river or sea boundary, because the subjects are conveyed ‘with free ish and entry thereto from the said high road, street, and sea.’ The ‘sea’ here can mean nothing but the river Clyde. It is said, however, by the defender, that this does not necessarily imply an ish and entry directly from the sea, and that the obligation will be sufficiently complied with by giving an ish and entry from the sea through the interjected land. It is clear, however, that such

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an ish and entry is an entirely different thing, and a much less valuable right than a right to bring boats and vessels directly up to the subjects feued; and I think the latter right and not the former was in the contemplation of the parties.

If the description by boundaries had stood alone in the feu-contract, I do not think that there would have been any doubt of the right of the pursuers to follow the retiring water, and that the land added by accretion to their subjects would have belonged to them. But the feu-contract also contains a description of the subjects by measurement. It gives not only the superficial area, but it describes the subjects as being ‘506 feet in breadth on each side from the said high road to low water.’

The defender maintains that this description is taxative, and that the pursuers are in no case entitled to a greater breadth of land than 506 feet. It is not true now that it is 506 feet from the high road to low water, it being, in fact, 130 feet more; and it may be doubted whether it was true for any length of time, seeing that such a boundary as that of ‘low water-mark’ is necessarily a shifting boundary. The water was probably receding more or less imperceptibly at the date of the contract. But it might have been that in place of receding, the water might have advanced upon the land, and in that case I do not see how the pursuers could have refused to pay the feu-duty stipulated, although they would not have had the breadth of feu or the superficial area described in the contract. What I think was intended to be given by the feu-contract was a piece of ground of a certain specified length along the high road leading from Greenock to Port-Glasgow, and extending down to the low watermark. I think the description by boundaries is quite sufficient to give them that, and therefore that they are entitled to prevail in this action.

I think the case of Gibson v. Bonnington Sugar Refining Company, 7 Macph. 394, has some analogy with the present case. There the superficial area of the subjects conveyed in the feu-contract was, as here, specified in the description, and the length of each of the four sides containing it was given by measurement, and it was laid down on a plan signed as relative to the contract. The subjects were, in fact, bounded by the Water of Leith, and the question arose whether the feuar was entitled to the alveus of that river ad medium filum aquœ ex adverso of his feu. The Court held that he was a riparian proprietor so entitled. So I think in this case the pursuers being in fact bounded by the sea, had a right to acquire any land that might be added to their feu by accretion. Such land could not belong to the Crown, because they had conveyed their rights in the foreshore to Sir Michael Shaw Stewart; nor could it belong to him, because he in his turn had conveyed his rights therein ex adverso of the subjects in question to the pursuers.”

The defender reclaimed, and argued—The pursuers were not entitled to declarator of right to the piece of foreshore in dispute; while the feu-contract under which they held the subjects conveyed by the defender's predecessor described the subjects by boundaries, it did so also by measurements. That being so, the description must be held as taxative. 506 feet was the greatest breadth of land to which they were entitled. The fact that the river Clyde had receded since the date of their feu-contract did not entitle them to more than was feued to them at that date—Bell's Prin. 738; Rankine on Land Ownership, 87; Hunter v. The Lord Advocate, June 25, 1869, 7 Macph. 906 (Lord President's opinion). In the case of Smart v. The Magistrates of Dundee, November 21, 1797, 3 Pat. App., p. 606, the expression “enclosed yard” was held to prevent the disponee from claiming anything lying outside the boundaries. The case of Gibson v. The Bonnington Sugar Refining Company was distinguishable from the present. There the boundary was a river within the subject given. The subjects were conveyed “with free ish and entry thereto from the sea.” This could only imply a right reserved between the ground conveyed and the sea.

The pursuers replied—The case of Hunter v. The Lord Advocate was a direct authority in favour of their position as to the defender having parted with his whole rights seaward. There the boundary being the “sea-flood,” it was held that the superior had no title to alluvial ground subsequently deposited between the feus and the sea. Where the charter was a bounding one, and there were measurements as well, they were not taxative, and did not preclude a feuar from maintaining a right under the feu-contract to an extent greater than the measurement specified in it— Ure v. Anderson and Others, February 26, 1834, 12 S. 494. The case of Smart v. The Magistrates of Dundee was not in point. In it the boundary was stationary, viz., a stone wall, and the granter of the conveyance was a royal burgh whose charter gave them rights of property beyond the wall.