Scottish Court of Session Decisions

Alexander Pirie of Leckmelm, Ross-shire, sought to have Hugh Rose, a fisherman and crofter, of Letters, which is situated on the west shore of Loch Broom, nearly opposite Leckmelm, interdicted “from cutting, collecting, or removing, by himself or others acting on his authority or instructions, seaware from the foreshore of Loch Broom between high and low water-mark ex adverso of the complainer's property of Leckmelm.” The complainer's property of Leckmelm was part of the barony of Loch Broom, and described in his title as, “All and Whole the easter and wester quarters of the lands of Lackmaline (now called Leckmelm), extending to one half davock of land, with houses, biggings, yards, tofts, crofts, outsets, shealings, grazings, fishings, annexis, connexis, parts, pendicles, and universal pertinents thereof whatsoever, all lying within the barony of Loch Broom.” It extended two miles along the shore of Loch Broom.

The complainer averred (Stat. 3) that he had under his titles sole and exclusive right to the seaware whether growing or drifted. “The said lands and estate of Leckmelm, which are part of the said barony of Loch Broom, extend for two miles or thereby along the eastern shore of Loch Broom, and under his titles the complainer has the sole and exclusive right to the seaware, whether growing or drifted, between high and low water-mark on the shore of Loch Broom ex adverso of his said;lands and estate of Leckmelm, and to remove and dispose thereof at pleasure, by himself or others having his authority. The complainer and his authors, and their tenants, have from time immemorial exercised the sole and exclusive right of cutting, gathering, removing, and utilising or disposing of said seaware.” He further averred that respondent had trespassed on the shore and collected seaware.

The respondent denied the pursuer's alleged right, and stated that he and his predecessors, in respect of his and their tenancy of part of Letters, and the tenants and possessors of the adjoining glebe lands and others, members of the public generally, had “exercised the right of cutting, gathering, removing, and disposing of seaware on the shore between high and low water-mark of Loch Broom ex adverso of the said lands and estate of Leckmelm, whether growing or drifted thereon, habitually, or according as they required the ware for agricultural purposes, and that for upwards of forty years prior to the complainer acquiring the property of Leckmelm in 1877.” He also averred that the foreshore was not the complainer's property but that of the Crown. He admitted having gone upon the foreshore between high and low water-mark for the purpose of taking seaware, but denied having been on the complainer's property.

The complainer pleaded—“The complainer having right to the whole seaware on the foreshore of Loch Broom ex adverso of his lands and estate of Leckmelm, and the respondent having removed seaware without his authority, the complainer is entitled to interdict as craved.”

The respondent pleaded—“(1) The complainer's statements are irrelevant and insufficient to sustain the prayer of the note. (3) The complainer not having any exclusive right to the whole seaware on the foreshore ex adverso of his lands, is not entitled to suspension and interdict as craved. (4) The respondent being entitled to remove seaware from the said foreshore in virtue of prescriptive usage by himself and his predecessors or authors, and other tenants or possessors of the glebe lands of Loch Broom, ought to have the note refused.”

The Lord Ordinary ( Fraser) found that the respondent had not averred any relevant right to collect seaware ex adverso of the lands of Leckmelm belonging to the complainer; therefore suspended the proceedings complained of, and interdicted the respondent from cutting, collecting, or removing, by himself or others acting under his authority or instructions, seaware from the foreshore of Loch Broom between high and low water-mark ex adverso of the complainer's property of Leckmelm.

“ Opinion—The question in this case is as to whether or not the respondent, a fisherman and crofter, residing at Letters, Loch Broom, in the county of Ross, has a right to carry off seaware from the foreshore of Loch Broom ex adverso of the complainer's property of Leckmelm. The complainer's property consists of a part of the barony of Loch Broom, and extends for two miles along the eastern shore of Loch Broom. It is not expressly said to be bounded by the sea, but it is de facto so bounded, and there can be no doubt that, having such a boundary, even though he has not an express title to the foreshore (except what may be implied in the clause of parts and pertinents followed by alleged possession), he has the right to the seaware thrown upon the shore.

The respondent, on the other hand, is a crofter and fisherman, living on the opposite shore of Loch Broom, and crosses over from that shore in a boat to the east shore ex adverso of the complainer's estate of Leckmelm, and there gathers seaware from that eastern shore, and this he does because he and other tenants of Letters, and the tenants of adjoining glebe lands, ‘members of the public generally, have exercised the right of cutting, gathering, removing, and disposing of seaware on the shore between

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high and low water-mark of Loch Broom ex ad—verso of the said lands and estate of Leckmelm,’ and that for upwards of forty years. There is no averment here of a right of servitude in favour of a dominant tenement. The claim is made as a member of the public. This is a claim which cannot be sustained according to the decision in Saltoun v. Park, November 24, 1857, 20 D. 89. Lord Saltoun was, like the complainer, a proprietor, with the seashore as a boundary de facto, though this boundary was not so expressed in his titles. He had also a barony title. The only difference between the present case and that of Lord Saltoun is that Lord Saltoun was proprietor of the whole barony, whereas here the complainer is proprietor only of a part extending along the seashore. But still as part proprietor of the barony he has all the privileges of the baron so far as his property extends along the seashore. A barony title, said Lord Cowan in the case of Saltoun, ‘confers certain privileges on the Crown vassal, inter alia the privilege of collecting seaware cast on the shore ex adverso of the lands, when those are de facto sea-bounded. No special infeftment with an express grant of wreck and ware is requisite to carry that right and privilege. It is inherent of the grant.’ The Court therefore found that tenants of lands in different parishes had no right to take seaware from the shore, although they alleged that for forty years and upwards the public generally, including themselves, were in the practice uninterruptedly, and as matter of right, of taking seaweed and shell-sand from the shore, which had ever been accessible to the public, without trespass upon the pursuer's lands, by means of public roads and accesses. Notwithstanding this, the Court found Lord Saltoun entitled to interdict, and following this precedent, the Lord Ordinary finds the complainer entitled to interdict in this action.”

The respondent reclaimed, and argued—The complainer was in the same position as the proprietor in the case of Agnew v. The Lord Advocate, January 21, 1873, 11 Macph. 309, and had not made out any right of property in the foreshore. The Lord Ordinary was wrong in holding that he had the exclusive right of seaware on it. He might have a right, but that was only a similar right to that of the complainer, viz., one defeasible by the Crown.

The complainer replied—The case was foreclosed by decided cases. Even though his title contained no express grant of the foreshore, his estate was part of a barony, and was de facto bounded by the sea. He had then that prima facie title to the foreshore which had been held in the cases cited infra sufficient to protect him against members of the public who could aver no right on which, prescription could possibly run— Baird v. Fortune, March 14, 1861, 3 Macq. App. Ca. 127; Lord Saltoun v. Park, November 24, 1857, 20 D. 89; Paterson v. Marquis of Ailsa, March 11, 1846, 8 D. 752.