Scottish Court of Session Decisions

This was an action against the Crown by Mr Wemyss of Wemyss, in the county of Fife, and by the trustees acting under a trust-disposition and conveyance granted by Mr Wemyss in 1891 in favour of himself and two other trustees. The pursuers sought by the action to establish their right to the coal and other minerals under the sea ex adverso of the estate of Wemyss, and under the foreshore.

The lands of Wemyss consist of West Wemyss, East Wemyss, and Methil, and extend along the estuary of the Forth, which forms their boundary on the south. By a Crown charter of resignation and novodamus in favour of the pursuer's predecessor, David, second Earl of Wemyss, dated 22nd July 1651, confirmed by Act of the Scottish Parliament ten years later, the three ancient baronies of West Wemyss, East Wemyss, and Methil were disponed to him, and were erected into a single barony called the Barony of Wemyss.

The united barony created by the charter of 1651 was dissolved on the reestablishment of Episcopacy after the Restoration, and the superiority of the barony of Methil, which lay within the regality of St Andrews, reverted to the Archbishop of that see. The barony of Methil accordingly was not included in Crown charters of the lands of Wemyss granted in favour of pursuers' authors in 1671 and 1673. Separate charters of the barony of Methil were obtained by them from Archbishop Sharpe, who by a charter of 1662 erected Methil into a burgh of barony. A subsequent charter of the same lands was granted by him in 1665, on which sasine followed in favour of pursuers' author on 27th September 1665. At the Revolution the superiorities of the see of St Andrews reverted to the Crown, and Crown charters of the whole lands of West Wemyss, East Wemyss, and Methil were granted in favour of pursuers' authors in 1711 and 1756. The lands, however, were not by these charters reconstituted into one barony, although it was declared that one sasine taken at the manor place of West Wemyss, or upon any part of the ground of the barony of Wemyss, should suffice for all the lands.

The charter of 1651 contained separate

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descriptions of the three estates of West Wemyss, East Wemyss, and Methil, and of the grants, privileges, and pertinents of each. These descriptions were repeated in all the subsequent titles. In the title to West Wemyss there was no grant of the coal, but a general grant of barony, with parts and pertinents. In the title of East Wemyss there was a grant of coal heughs (carbones et carbonaria) of the same, and a further grant “ lucrandi et effodiandi carbones et carbonaria infra fluxum maris, infra bondas prædictas,” i.e., within the lateral boundaries of the barony of East Wemyss. In the title of Methil there was a grant of the whole coal heughs of the barony “tam subtus terra quam supra terram.”

In the series of charters forming the progress of titles the coal in the three baronies was dealt with in substantially the same terms as in the charter of 1651. The whole estate, with the exception of certain portions which had been alienated since that date, had been continually occupied and possessed down to the present time by the ancestors of Mr Randolph Wemyss.

In 1842 two deeds of entail were granted by the proprietor, Admiral James Erskine Wemyss, by which certain portions were entailed. The present pursuer Mr Randolph Wemyss succeeded to the estate upon the death of his father in March 1864, and from that time till 11th July 1879, when he attained majority, the estates, so far as unentailed, were under the management of his father's trustees.

In December of that year he executed an instrument of disentail by which he disentailed the entailed lands, and granted in his own favour a disposition of all these lands. He subsequently executed a trust-disposition in favour of himself and the other pursuers, by which he conveyed to himself and the other pursuers all the estate in question.

The estate extends about 5 1 2 miles along the firth, and of this seaboard about 3 1 2 miles consists of the entailed lands.

In 1874 Mr Howard, the Commissioner of H.M. Woods and Forests, wrote to the trustees who were then managing the estates, in the following terms:—“It has recently come to my knowledge that you are working a colliery at West Wemyss to the north of the harbour, and that your workings extend under the bed of the Firth of Forth. As the minerals under the bed of the Firth of Forth, unless specially granted away, belong to Her Majesty, and as I am not aware of any grant in your favour, I have to request that you will be good enough to inform me under what authority you are working under the Forth.”

The matter was considered by Messrs Melville & Lindesay, who were at that time agents for the Wemyss family, and on 24th August they wrote to Mr Howard as follows:—… “We have accordingly made inquiry, and we now state, in reply, (1) that the family of Wemyss have been in the uninterrupted possession of the barony of Wemyss for upwards of two hundred years, under charters from the Crown; (2) that for more than forty years they have, as owners of the barony, worked the coal under the bed of the Firth of Forth ex adverso of the lands of the barony, and this not secretly, but in the most open and public manner possible; and (3) that such title and possession exclude all interference on the part of the Crown in regard to the coal in question, which can be worked only by means of pits sunk on the Wemyss land or shore. If, however, notwithstanding the above facts, you are advised that the Crown has right to the coal under the Forth, opposite to and connected with the barony lands, and is prepared to try the question of ownership in a court of law, we would be disposed to recommend to Mr Wemyss, rather than enter upon a protracted litigation, to make some sacrifice by paying to the Crown a small rent or royalty for the coal he may find convenient still to take out under the existing very precarious working.”

In reply Mr Howard denied that working coal under the bed of the sea on a barony title, even for forty years, could ever have the effect of setting up a right to the bed of the sea as part of the barony. Accordingly he intimated that the Wemyss workings had been an encroachment upon the ungranted rights of the Crown, and that the proprietor was liable to account for the full value of the coal which had been worked. At the same time he indicated that the full rights of the Crown in that respect might not be demanded.

Further negotiations followed, and in May 1875 the Crown granted to the trustees a lease for thirty years of the coal under the sea beyond the foreshore ex adverso of the whole estate, including both the entailed and unentailed lands, on the understanding that the trustees abandoned all right to that coal.

Under this lease, which bound the Crown in warrandice from fact and deed only, the Crown, as a consequence and in respect thereof, undertook expressly not to raise any question or make any claim in respect of past workings. Mr Randolph Wemyss was not made a party to the lease, or to the compromise which preceded it.

On his attaining majority he accepted from the trustees an assignation of the lease, dated August 1879.

In 1887 Messrs Melville & Lindesay, acting under the instructions of Mr Wemyss, wrote requesting the Crown to reduce certain of the lordships payable under the lease, and as a result of the correspondence a reduction was made.

In 1890 a minute was entered into between the Commissioners and Mr Wemyss, whereby certain alterations in the lease in regard to the working of the minerals were agreed to.

In December 1893 the present action was raised, concluding for declarator that “the ground forming the shore of the sea or of the estuary of the Forth between high-water mark and low-water mark ex aa/verso of the united barony and estate of Wemyss (including therein the ancient lands and older baronies of (1) Wemyss, now called West Wemyss, (2) Easter

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Wemyss, and (3) Methil), all in the county of Fife, belonging to the pursuers;” and “the coal and other mines and minerals under the sea ex adverso of the said united barony and estate and foreshore thereof, belong in property to the pursuers, the said Randolph Gordon Erskine Wemyss, George Levinge Whately, and William Nocton, as trustees foresaid, and are parts and portions, or parts and pertinents, of the said united barony and estate,” subject to the Crown's right as trustee for public uses, so far as regards the said seashore.

The action also concluded for declarator that “the pursuers are not bound by the terms and obligations contained in a lease of the coal and others under the sea beyond the said foreshore, entered into between the Honourable James Kenneth Howard, one of the Commissioners of Her Majesty's Woods and Forests and Land Revenues, and the trustees of the late James Hay Erskine Wemyss, dated 20th and 28th days of April and 3rd day of May, all in the year 1875, with addition thereto executed by George Culley, one of the said Commissioners of Her Majesty's Woods and Forests and Land Revenues, and the said Randolph Gordon Erskine Wemyss, dated 21st and 25th days of July, both in the year 1890.”

The pursuers averred that Mr Randolph Wemyss had only recently become aware of his rights as owner of the submarine minerals.

They pleaded—“(1) The pursuers being heritable proprietors of the foreshore and the coal therein, and the coal under the sea ex adverso of the said united lands and barony of Wemyss, are entitled to decree in terms of the first conclusion of the summons. (2) The lease and addition thereto libelled having flowed a non domino, and being ultra vires of the lessees, and having been accepted by them in ignorance of the said Randolph Gordon Erskine Wemyss' rights in and title to the coal and others thereby leased, the pursuers are entitled to decree in terms of the second conclusions of the summons. (3) There having been no homologation or adoption of the lease to the effect of excluding the present action, the pursuers are not barred from insisting in the same. (4) The title of the pursuers is sufficient, especially as interpreted by immemorial or prescriptive possession, to carry the minerals claimed in the summons. (5) The possession of the submarine minerals ex adverso of part of the united barony is sufficient to explain the scope of the Crown charters along the whole of the continuous seaboard of the said barony.”

The defenders averred that the lease in 1874 had been granted as the result of a compromise between the parties on, inter alia, the following terms:—“That the Crown should abandon all claim in respect of past workings, and should grant to the said pursuer (Mr Wemyss), and that the said pursuer should accept, a lease for thirty-one years of the minerals below low water-mark exadverso of the lands of Wemyss within certain specified limits, and that the said pursuer should abandon, as he did abandon, on behalf of himself and the succeeding proprietors of Wemyss, all claim to the said minerals. The said transaction or compromise and agreement are embodied in correspondence between the late Mr Howard on the part of the said Commissioners, and Messrs Melville & Lindesay, W.S., on the part of the said pursuer.”

They pleaded—“(2) The pursuers are barred from insisting in their present claims, in respect (1st) that the pursuer Mr Wemyss and the said trustees, by entering into the said transaction or compromise, and by accepting and working the minerals under the said lease, admitted that the right of property in said minerals belonged to the Crown, and barred themselves from afterwards disputing the right of the Crown thereto; and (2nd) that the pursuer Mr Wemyss ratified or otherwise homologated and adopted the said transact ion or compromise and the said lease, and worked the minerals under the said lease, as modified by the arrangements with him condescended on, and thereby admitted and barred himself from afterwards disputing that the Crown had right to the said minerals. (3) Upon a sound construction of the titles relied on by the pursuers, the said titles do not convey the minerals under the sea below low water-mark. (4) The titles libelled by the pursuers do not form a habile ground for the acquisition by prescriptive possession of any minerals under the sea below low water-mark, and separatim, such minerals cannot in law be acquired by prescriptive possession. (5) Assuming that the pursuers have a title to minerals under the sea below low-water mark, such title does not extend beyond the limits ex adverso of the sea specified in the charters of 1616 and 1651, or at all events the said title does not confer any right to minerals under the sea other than those ex adverso of the barony of East Wemyss.”

The Lord Ordinary ( Stormonth Darling) on June 24th 1894 allowed the parties a proof on the question of bar.

The pursuer Mr Randolph Wemyss deponed that he had never seen the correspondence of 1874 till the present case was raised, and that he had signed the assignation of 1879 among a number of other documents without having its tenor specially brought home to him. With regard to the concessions made by the Crown in 1887 and 1890, he deponed—“I took an interest in getting the royalty reduced.… I also dealt with the Crown in getting a remission of the restriction as to working.… The Crown granted both these concessions, but at that time I did not know my rights.” About 1890 he first began to consider that he might have a right to the submarine coal, and instructed Messrs Tods, Murray, & Jamieson to look into the old titles. “At that time I did not know anything about the titles except for the period during which I was leaving my agent to consider the matter, viz., 1890 to 1892. I never in any way dealt with the Crown after I came to know that there was really a question, and that I might claim the minerals for my own.”

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Evidence was given to the effect that the old titles had not been kept by Messrs Melville & Lindesay, and as to the discovery of the charter of 1651 at Wemyss Castle by Messrs Tods, Murray, & Jamieson. Mr Jamieson deponed that in consequence of the investigation of the old titles they had come to the conclusion that the coal belonged to the pursuers, and had raised the present action.

The Lord Ordinary on 22nd December 1894 sustained the plea of bar and assoilzied the defenders from the conclusions of the summons, with the exception of the first, which they did not oppose.

Opinion.—“The pursuer, as proprietor of the barony and estate of Wemyss, in Fifeshire, seeks by this action to establish his right to the coal and other minerals under the sea ex adverso of that estate and the foreshores thereof. His case on the merits is laid both on express grant from the Crown by a charter of resignation and novodamus granted in 1651 and confirmed ten years later by Act of the Scottish Parliament and also on immemorial possession founded on his barony title. But it appears that in 1875, when the pursuer was a minor, his father's trustees (who were also his curators) accepted from the Crown a lease of the coal in question, which does not terminate till 1905, and that the pursuer himself, who came of age in July 1879, arranged with the Crown in 1887 and again in 1890 important modifications of the lease both as regards the rate of lordship and the mode of working the coal. The Crown accordingly pleads that he is barred by these transactions from insisting in his present claims.

I am of opinion that this plea is a good one, and ought to be sustained. I shall consider (1) how the matter would have stood if the pursuer had been of full age at the time when the lease was entered into, and (2) whether the fact of his having then been in minority makes any difference.

[ His Lordship here narrated the negotiations between the trustees and the Crown as narrated above and proceeded—]

Further negotiations followed and resulted in the granting of the lease to which I have referred, in which the Crown as a consequence of the lease being accepted expressly departed from all claims in respect of bygone workings.

Now this was unquestionably ‘a transaction,’ as that phrase is defined by Lord Stair, i. 17, 2. Both parties maintained their respective views, but each ‘quitted some part of what they claimed, to redeem the vexation and uncertain event of a plea.’

When that is the case Lord Stair says, ‘It is therefore the common interest that the transaction should be firmly and inviolably observed, which both by the Roman law and our customs has been held as sacred and necessary for men's quiet and peace.’ If an action had been raised by the Crown, and the proprietor of Wemyss had compromised it by accepting a lease in consideration of the Crown's renunciation of all claims for bygones, I apprehend it would have been impossible for either party afterwards to set aside the compromise on any ground except misrepresentation or fraud. I do not see that a different rule should be applied to a transaction entered into for the purpose of averting a threatened lawsuit. In the case of Stewart v. Stewart (1839, M'L. and Rob. 401), the House of Lords refused to set aside such a compromise on the ground that a particular point of law had been mistaken or overlooked.

The pursuer, however, maintains his right to cut down the lease (for that is substantially the claim which he makes), not merely on the ground that his advisers in 1875 were wrong in giving up that part of his case which was founded on a barony title followed by possession, but also on the ground that he has recently discovered the Crown charter of 1651, which, as he says, contains an express grant of the minerals in question. I do not dispute his contention that for the purpose of testing a plea in bar everything must be assumed in his favour. But even assuming that the Crown charter does contain an express grant, it must be borne in mind that the deed was in his possession, and that its contents might have been known to his advisers at the time when the compromise was made. I am aware that this element existed in the case of Cooper v. Phibbs (L.R., 2 Eng. and Ir. Apps. 149), where the very same facts existed of a man having taken a lease of a heritable subject which was truly his own. But the essential difference between that case and the present is that there was in it no element of compromise. Both parties contracted under a mutual mistake and misapprehension as to their relative and respective rights. One party believed himself to be entitled to the property, the other party believed that he was a stranger to it. Accordingly there was no threat of litigation, and there were no opposing claims which could form the subject of a transaction. The question was treated just as if both parties had contracted on the footing that a particular person was dead, when in truth he was alive.

If a similar state of facts had existed in the present case I do not say that the mere lapse of time, and the difficulty of reinstating parties in the position which they occupied in 1875, would of themselves have prevented the remedy of reduction being granted. But it is a peculiarity here that the pursuer does not limit himself to the case of express grant. He still maintains his case on a barony title, followed by possession, and it is obvious that the lapse of time might make it much more difficult for the Crown to meet that case now than if they had taken action when they threatened to take it in 1875. The element of compromise also makes this important difference, that if the lease were to be set aside, the Crown would undoubtedly be entitled to revive their claim for bygones, and that also might be rendered more difficult to establish by the fact that the pursuer has been working the coal under the lease for nearly twenty years.

The next question is, whether the fact

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of the pursuer having been a minor in 1875 gives him right to a relief which he would not otherwise be entitled to. That the trustees were entitled to compromise claims connected with the unentailed lands which formed the trust estate, so as effectually to bind him, is clear enough. But he might have been entitled, after he attained majority, to challenge the lease as regards the entailed lands if he had exercised his right in time. So far from doing that, however, he transacted with the Crown for himself in 1887, when he was twenty-nine, and again in 1890, when he was thirty-two. By the formal minute which was entered into in the latter year, he expressly agreed that the lease should be continued for its unexpired period according to its terms in all respects, except as thereby altered; and this seems to me to have constituted not merely an adoption of the existing lease, but a new agreement on the part of the pursuer himself, by which all objection on the ground of minority is entirely superseded.

I shall therefore sustain the defender's second plea-in-law, and assoilzie him with expenses.”

The pursuers reclaimed.

On 28th February 1895 the Court recalled the interlocutor reclaimed against hoc statu, and allowed parties a proof of their averments so far as not already admitted to probation. The proof was directed towards establishing the prescriptive possession by the pursuers by their having worked the submarine coal for more than the prescriptive period, within the knowledge of the Crown. The result of the evidence is sufficiently indicated in the opinion of the Lord President. By a joint-minute of admissions the parties admitted, inter alia—“(1) That for more than the prescriptive period prior to 1874 the pursuer, the said R. G. E. Wemyss, and his predecessors, continuously and without interruption worked the coal under the foreshore and beyond the foreshore, under the bed of the sea ex adverso of a part of the lands of West Wemyss; but the defender does not admit that the working of the said coal under the bed of the sea came to the knowledge of the Commissioners of H.M. Woods and Forests prior to the year 1874. (2) That there never was any working of the coal under the bed of the sea below low-water mark ex adverso of the lands of East Wemyss and Methil until after the year 1874. (3) That the pursuers have right to the foreshore and to the coal under the foreshore of the lands of West Wemyss, East Wemyss, and Methil.”

Argued for reclaimers— (a) On bar—The trustees had no right to deal with the entailed lands and to compromise as to the minerals contained in them, without Mr Wemyss being made a party to the transaction, so that the lease, being a unum quid, must fall as void ab initio. But this was not really a compromise at all, for the trustees were ignorant of the existence of the charter of 1651 giving a barony title. The fact that they were in possession of the means of getting this knowledge, did not bar them from setting aside a compromise based on common error— Cooper v. Phibbs, 1867 (L.R., 2 Eng. and Ir. Apps. 149); Htiddersfield Banking Co. v. Lister & Son, 1895, L.R. 2 Ch. 273, at 281; Beauchamp v. Winn, 1873, 6 Eng. and Ir. App. 223, at 233; Kelly v. Solan, Nov. 18, 1841, 9 M. and W. 54; Stewart v. Stewart, Nov. 22, 1836, 15 S. 113; 1839, M'L. and Rob. 401; Kippen v. Kippen's Trustees, July 10, 1874, 1 R. 1171; Balfour v. Smith, Feb, 9, 1877, 4 R. 454. Accordingly there had not really been a “transaction” as defined by Lord Stair in the passage quoted by the Lord Ordinary. Nor could it be said that the pursuer had homologated the agreement, since he too was in ignorance of his legal rights at the time when he took up the lease and entered into the subsequent negotiations; nor was he aware of the so-called surrender contained in the correspondence leading to the lease. Accordingly the case was ruled by that of Cooper v. Phibbs. But in any case the lease did not amount to a renunciation of the pursuers' rights, but merely to a suspension of them for 30 years. Accordingly the pursuers' rights to the coal were still open. (6) Assuming this to be the case, their claims to the coal in the three baronies were based on somewhat different principles. With regard to West Wemyss they founded upon a barony title followed by prescriptive possession of the coal under the sea. In East Wemyss there was an express grant, of which the true reading must be held to include the coal claimed, and alternatively the possession ex adverso of West Wemyss applied to the coal ex adverso of East Wemyss, the two old baronies having been united. It also applied to Methil, it having been united to the other two, but failing its application, a simple barony title carried the coal in question even though not followed by possession. (1) West Wemyss—There had, as the evidence and the admissions of the defenders showed, been uninterrupted and open working of the coal from time immemorial. A seaboard barony such as this held on a charter with a clause of parts and pertinents was a good foundation for the prescription not only of the foreshore, which was admitted by the defenders, but also of the regalia, both in the wider and narrower sense, as including both corporeal and incorporeal things— Duke of Montrose v. Macintyre, March 10, 1848, 10 D. 897. That was the case of a ferry, but the present case was a fortiori of it, because here it would be physically impossible for anyone but the Crown or the pursuers to use the coal. Accordingly, there was a presumption that the Crown, having by its grant to the pursuers' authors rendered it impossible for itself to use the coal, intended to convey the right to the pursuer, a presumption which was capable of being verified, and had been verified by possession. The defenders' argument that only the actual amount which had been worked could be prescribed was clearly untenable,

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for it would practically exclude coal altogether from prescription or confine it to operating an indemnity for unlawful acts already done— Crawford v. Durham, June 2, 1826, 4 S. 665; Forbes' Trs. v. Livingstone's Trs., Jan. 31, 1822, 1 S. 311, Nov. 29, 1827, 6 S. 167. Accordingly possession was not a measure but an index of the pursuers' right. The case of Young v. N.B. Railway Co. (Aug. 1, 1887, 14 R. H. of L. 53), showed that this principle applied in the case of the foreshore, and there was no reason why it should not be applied to minerals below low-water mark. Accordingly they had acquired rights below low-water mark the same as those above, viz., rights limited only by those of the public to fishing, navigation, etc.—Ersk. ii. 1, 6, ii. 6, 18; Bell's Prin., sec. 642; Hunter v. Lord Advocate, June 26, 1869, 7 Macph. 899. Their boundary seawards might be held to be either at the medium filum or at the three-mile limit. (2) East Wemyss— There was here an express grant of winning the coal “infra fluxum maris.” The meaning; of this expression simply was “below high-water mark” ex adverso of these lands. Accordingly, it conferred a right to all the coal below the sea ex adverso of East Wemyss. If, however, it were held that the defenders' interpretation of this as merely conferring a right to the coal below the foreshore were the right one, the pursuers still had a right to the coal ex adverso of East Wemyss in virtue of the prescriptive possession at West Wemyss, the two baronies being parts of the one united barony. Where the barony lay, as this united barony did, in a continuous line along the coast, possession of one part would fortify a title to the whole. It was only where different parts of the barony were discontinuous that this rule did not apply— Lord Advocate v. Cathcart, May 19, 1871, 9 Macph. 744; M'Douall v. Lord Advocate, March 18, 1875, 2 R. (H. of L.) 49; Lord Advocate and Clyde Trustees v. Blantyre, June 19, 1879, 6 R. (H. of L.) 72, at p. 80; Lord Advocate v. Lovat, July 12, 1880, 7 R. (H. of L.) 122. The fact that the pursuers' rights on East Wemyss might be held to be limited by their title did not prevent the application of this principle, for there was no reason why their rights should not be increased by possession in another part of the united barony, which was treated as a unum quid. Moreover, there was the alternative reading of the clause, viz., that it gave power to open the foreshore, in sinking pits for supplying with coal the salt pans mentioned in the same clause. (3)— Methil—The same argument applied to Methil as being part of the united barony of 1651, but even more forcibly, since there was no limit fixed in the title applying to it. It was not true to say that the taking of the charter of resignation from the Archbishop of St Andrews dissolved the united barony. At the date of that charter the Crown was still the superior, and so this did not get rid of the Crown title. There should have been a special dissolution of the barony under the statute of 1662. Alternatively a barony title with parts and pertinents such as that upon which Methil was held gave a title per se without any possession being required to the coal below low watermark. The case of the foreshore was analogous, and that was carried by a barony title without possession. No doubt in many of the cases reported the proprietor had proved possession, but it was not necessary for him to do so—Bell's Prin. 642; Innes v. Downie, May 27, 1807, Hume, p. 552; Campbell v. Brown, November 18, 1813, F.C.; Macalister v. Campbell, February 7, 1837, 15 S. 490; Patterson v. Marquis of Ailsa, March 11, 1846, 8 D. 752; Lord Saltoun v. Park and Others, November 24, 1857, 20 D. 89; Hunter v. Lord Advocate, June 25, 1869, 7 Macph. 899. It was true that in the case of Agnew v. Lord Advocate, January 21, 1873, 11 Macph. 309, the vassal did prove possession of the foreshore, and there were dicta to the effect that it was necessary, hut the question was really left open (Lord Neaves, at p. 332)— Officers of State v. Smith, March 11, 1846, 8 D. 711, July 13, 1849, 6 Bell's App. 487. The rule applied in the case of baronies, which were de facto bounded by the sea, as well as in the case where the words “bounded by the sea” were inserted in the title.

Argued for the respondent;—The pursuers could not plead that the trustees had not the same means of ascertaining the pursuers' rights when the compromise was made as they had now. It had not even been proved that their legal advisers did not know of the 1651 charter. There was, however, authority which clearly showed that a compromise based on the abandonment by the Crown of certain legal rights, could not be set aside even if error or had advice by an agent were shown to have influenced the other party—Ersk. Inst. iii. 3, 54; M'Alister v. M'Alister's Trustees, June 29, 1827, 5 S. 871; Stewart v. Stewart, supra; Haldane v. Ogilvy, November 8, 1871, 10 Macph. 62, at p. 71; Wason v. Waring, June 1852, 15 Beav. 151; Callisher v. Bischaffsheim, June 6, 1870, 5 Q.B. 449. The case of Cooper v. Phibbs was clearly distinguishable from the present, because in that case there were no elements of a compromise, it being merely a case of mutual error. It made no difference that Mr Wemyss was a minor at the time of the transaction, nor did the fact that the trustees only really managed half of the estate, and yet were entered as tenants for the whole, affect the nature of the compromise. In any case, Mr Wemyss had by his conduct since attaining majority clearly homologated the lease, the formal agreement of 1890 being more than this, and amounting to a new agreement on his own part. Accordingly, no objections could be raised on the ground of his minority, and if the compromise were to be reduced, it must be on the grounds of error such as would have enabled the trustees themselves to reduce it. The authorities showed there were no such grounds. (1)— West Wemyss—Even assuming that the pursuers' possession had been open and uninterrupted,

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which the defender did not admit, the coals under the sea were not a subject which could be acquired by prescription. There were three different species of rights belonging to the Crown, viz., Regalia minora; comprising incorporeal rights, such as fishing; rights held in the public interest such as highways; and property, including the right to the solum of the sea—Bell's Prin., sec. 667; Lord Advocate v. Clyde Navigation Trustees, November 25, 1891, 19 R. 174. The cases quoted by the pursuers dealt with rights of the first class, but rights of the third were not on the same footing. It was not possible to acquire the whole by possessing a small portion. The land under the sea was not a recognised tract, a unum quid like the foreshore, and the pursuers could not even define the limit seawards which they claimed to have acquired. Accordingly, the most that they could claim was “ quantum possessum tantum præscriptum.”— Maitland v. M'Clelland, Dec. 21, 1860, 23 D. 216. Their mistake lay in treating the sea as cut into small pieces running out ex adverso of each seaboard barony, instead of as a whole, which was the correct method of considering it. Moreover, they were not in a position to prove that their possession had been in virtue of their barony title, and this was essential for showing that their grant was explained by possession— The Lord Advocate v. Hunt, Feb. 11, 1867, 5 Macph. (H. of L.) p. 1; Mackintosh v. Abinger, July 12, 1877, 4 R. 1069. (2) East Wemyss—The words of the grant in this barony clearly limited the right to the coal under the foreshore. That was the only intelligible meaning which could be given to the words “ infra fluxum mams.” The word “fluxus” was used in a distinct sense from “ mare” as a whole, and meant that part of the sea flowing over the foreshore. It was clear that prescription, which might apply at West Wemyss could not apply to East Wemyss, where the grant seawards was expressly limited. Moreover, all the cases quoted in support of the pursuers' argument dealt with rights within a barony. The question here was, what was the extent comprised in the barony—a very different question. Though the two estates had been united into one barony, they must still be dealt with as two estates, one of which, viz., East Wemyss, had a bounding title limiting the proprietor's rights to the foreshore. This was the theory of all the titles subsequent to 1651, and accordingly these rights could not be extended by possession ex adverso of the other estate. (3) Methil—This barony had been separated from the united barony, and had never been re-united with it. Accordingly, the pursuers' contentions as to partial possession could not apply. As regards the effect of a barony title, it was plain that it did not per se confer on the grantee the rights claimed by the pursuers. In the first place, it was a startling pro position to maintain in the face of the opinions in Agnew's case, where the point was expressly decided in a manner contrary to the pursuers' contention. This was approved by the Court in Lord Advocate v. Clyde Trustees and Lord Blantyre, June 19, 1879, 6 R. (H. of L.) 72, and the point was really no longer open for decision, it being laid down clearly that the title must be followed by possession. In none of the cases quoted by the pursuers was there a contest of titles, as the baron was fighting with persons having no rights whatever. But even if the foreshore was carried, it did not follow that a barony title carried also the solum under the sea. All their cases accentuated the difference between the sea and the foreshore, which were treated as different territories.

At advising—