Scottish Court of Session Decisions

William Lockhart, contractor, North Berwick, was the proprietor of a strip of ground within the burgh of North Berwick, situated at the east corner of the West Bay, under a disposition in his favour by the trustee of his deceased father Andrew Carlaw Lockhart, with consents therein mentioned, dated 14th, 17th, 22nd, and 27th February, and recorded in the Burgh Register of Sasines 2nd March 1893. In this disposition the subjects were described as bounded “on the north by the sea-shore.”

In December 1900 Mr Lockhart presented a note of suspension and interdict against the Royal National Lifeboat Institution, praying the Court to interdict the respondents from encroaching on his property lying immediately to the south of part of the southmost side parapet of the old lifeboat slip, North Berwick, in making erections or digging foundations, or in any way interfering with his property, and to ordain the respondents to fill up excavations made by them, to level the surface, and to

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remove any buildings erected by them on his property.

The complainer pleaded—“(1) The pursuer is entitled to interdict and to the other warrants as prayed for, in respect—(a) that he is heritable proprietor of the ground in question; (b) that the operations of the respondents are wrongful and illegal, and in violation of the complainer's title and rights of property in the said ground” …

The respondents the National Lifeboat Institution, who were proceeding with the extension of the old lifeboat slip under a title of lease from the Provost, Magistrates, and Council of the Royal Burgh of North Berwick, lodged answers, and pleaded—“2. The prayer of the note should be refused, with expenses, in respect that (1) The subjects upon which the operations complained of are being executed are not included within the titles of the complainer, or the ground of which he has had possession under these titles; (2) Esto, that they are contained within said titles, the Provost, Magistrates, and Town Council of North Berwick have had full and exclusive possession thereof upon a habile title for upwards of the prescriptive period; (3) the said subjects belong in property to the said Provost, Magistrates, and Town Council, and the respondents as their tenants are entitled to the possession of the said subjects.”

In June 1901 the complainer moved that the note should be intimated to the Magistrates of the burgh, and they appeared and adopted the answers of the original respondents.

The complainer produced the following titles in favour of his authors—(1) an instrument of resignation and sasine dated 23rd October 1797, and recorded in the Burgh Register of Sasines 1st November 1797, which proceeded upon a disposition of the subjects granted by Robert Vetch in favour of Mrs Catherine Denham or Douglas, and resignation by said Robert Vetch in the hands of one of the bailies of the burgh “as in the hands of His Majesty and royal successors … in favour and for new infeftment to be made, given, and granted …” to Mrs Douglas, and delivery of sasine, following upon acceptance of said resignation, of the subjects, by the usual symbols, by the bailie to Mrs Douglas; (2) An instrument of cognition and sasine in favour of Robert Douglas Macdougall dated and recorded in the Register of Sasines for the burgh of North Berwick, 26th February 1857, by which one of the bailies of the burgh, within the Council Chambers of the burgh, by virtue of his office of bailie, cognosced and entered M'Dougall as the heir entitled to succeed to the subjects, and gave and delivered to him as heir foresaid “heritable state and sasine, real, actual, and corporal possession” of the subjects, “to be holden of and under the Queen and her royal successors in free burgage for service of burgh;“(3) An excerpt from the instrument of sasine in favour of the complainer's father, recorded in the Register of Sasines for the burgh of North Berwick 28th February 1857. In all these three titles the subjects were described as bounded “by the seashore on the north parts.”

The respondents produced a royal charter dated 18th September 1568, in which King James VI., inter alia, conveyed to the Provost, Magistrates, and Town Council of the Royal Burgh of North Berwick the right of property in a portion of land within the royalty of the burgh, which included the piece of ground belonging to the pursuer and the adjacent proprietors. In this title the property was described as bounded by “the sea on the north parts.”

Proof was allowed and led. The result of the proof on the nature of the proposed operations and the question of possession sufficiently appears from the opinions of the Judges.

On 8th April 1902 the Lord Ordinary ( Pearson) pronounced the following interlocutor:—“Refuses the prayer of the note, and decerns,” &c.

Note.—“The complainer is proprietor of a strip of ground within the burgh of North Berwick, situated at the east corner of the West Bay, and described in his title as bounded “on the north by the sea-shore.” The lifeboat launching slip, which was built in 1871, lies to the north of the complainer's ground, and it was recently found necessary to widen the slip by adding a triangular extension along the south edge of it. The complainer seeks to prevent this, averring that the extension is entirely or almost entirely within his property. As the National Lifeboat Institution, who were proceeding with the work, were doing so under a title of lease from the Provost, Magistrates, and Council of the Royal Burgh, the complainer moved that the note should be intimated to the burgh authorities, and they have appeared and adopted the answers of the original respondents.

“The burgh produces a Royal Charter, dated in 1568, conveying the right of property in certain subjects, described by east and west boundaries, which are still recognisable, and between which the ground in question lies, and the subjects are described as bounded by ‘the sea on the north part.’

The complainer holds no title from the burgh. The immediate title he founds upon is a disposition in his favour by the trustee under his father's will. That disposition is dated 27th February, and recorded in the burgh register of sasines 2nd March 1893.

So far, therefore, as the disputed ground lies between high and low water-mark, the position is, that the burgh has an express title from the Crown, with a ‘sea’ boundary, while the complainer, without connecting himself with either the Crown or the burgh, has a title which bears that his subjects are bounded by the sea-shore.

Assuming for the moment that these two boundaries mean the same thing, it seems clear in a question with the burgh that while the complainer's title will afford a basis for prescription, he cannot prevail except on condition of proving prescriptive

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possession of the disputed subjects by himself and his authors in virtue of their titles. He accordingly avers that they have had such possession, and that is the first point to be considered.

At the place in question the east and west bays nearly meet, and on the neck of land between them Victoria Road runs northward in the direction of the harbour. The lifeboat house is on the east side, and the boat is launched by being drawn across the road and down the slip on the west side. The south-east corner of the West Bay, into which the slip runs, is a place where drift sand tends to accumulate. This has been so for many years, and it appears from the evidence that about the summer of 1868, a year or two before the original lifeboat slip was built, the burgh authorities erected a wind fence or sand fence of railway sleepers across the north frontage of the complainer's property in order to prevent Victoria Road from being overblown with sand. The effect of this fence and of the boat slip was to direct the drift of sand in that part into a comparatively small angle, where it gathered into a bing. But before as well as since these operations the drift sand seems to have been extensively used for various purposes, mainly for ballasting ships (though this use has latterly fallen off), for building purposes, and for railway locomotives. Sand was taken also from other parts of the shore, but for various reasons the locality in question was the most convenient and (so far as appears) the most frequented.

The complainer's father, who died in 1892, acquired his property in 1857 from one Robert Macdougal. At that time there was a rubble wall on the sea front of the subjects adjoining to the west, but the Lockharts' property lay open to the shore. When the sleeper fence was put up in 1868 the complainer says his father told him that his permission was asked and obtained, but the circumstances as to this do not further appear, and there is no record of it. Again, when the original lifeboat slip was built in 1871 the complainer says his father told him that he consented to its being put up, as being for a charitable institution, and that ‘he gave them the piece of ground.’ But it does not appear to whom the consent was given, nor that any writing passed on the subject. These verbal consents depend on the evidence of the complainer, and also (in one case) of Mr Stewart, as to what Mr Lockhart senior said. Assuming this to be sufficient evidence, it appears to me that such consent goes a very little way towards making out a case of possession, if no writing passes and no title is given. It would be difficult to maintain that the possession of the original slip by the Lifeboat Institution has really been the complainer's possession, as if he had granted a lease of it.

The complainer's case of actual possession rests almost entirely upon the taking and carting away of sand from the ground between the sleeper fence and the slip. It may be taken that he and his predecessors have done this for many years, by themselves and those having their authority, and that this is the main use, if not practically the only use, to which the subject can be put. But in my opinion the proof of possession fails of its object, because it was not exclusive possession. Here again we are met by the assertion that Mr Lockhart senior was in the habit of giving his consent to the taking of sand, besides taking it himself. And there is no doubt that such consent was given by Mr Lockhart, notably to the witness Councillor Stewart. I do not doubt that the Lockhart family all shared the desire that their permission should be asked, and that in some instances it was asked, and from this they drew the generalisation that their consent was required. But nothing could better illustrate the inadequacy of this as inferring possession by the Lockharts through licences than the petition of Mr John Bell. Mrs Henderson, the complainer's sister, states that she is sure she heard her father give Mr Bell leave to take sand, and, if Mr Bell had been dead, this would have counted as an instance of Mr Lockhart exercising the licensing power. But Mr Bell himself (a witness for the complainer) negatives the idea altogether, and says that he took sand from that part for ballasting vessels without Mr Lockhart's leave being asked or given, and that Mr Lockhart must have seen him taking it. And Mrs Henderson, being pressed, takes refuge in the generality ‘that the public got permission, and Mr Bell would be one of them as well as the rest.’

There are two lines of evidence, the combined effect of which leads me to the conclusion that the complainer's proof of exclusive possession has failed. The one is, that for a long series of years, at all events from 1834, the burgh included among the customs, which it let yearly to a tacksman, a certain charge for each cartload of sand taken from the shore within the burgh. The only change has been that since 1894 the burgh authorities have levied the rates themselves through a collector. It is, of course, impossible to identify now from what part of the shore the particular loads were taken, but it is certain that the tacksman's title to levy customs was not in any way restricted, and that it extended over the ground now in dispute. The other class of evidence is that of persons who have in fact taken sand from this place without Mr Lockhart's leave, and that not surreptitiously but in ordinary course. I have already referred to Mr John Bell's case. There is sufficient additional evidence to the same effect, and on the other hand there is no evidence of the complainer ever having stopped anyone from taking sand from this particular ground.

I have assumed down to this point that the complainer's ‘sea-shore’ boundary means the same as the burgh ‘sea’ boundary, and would have been as effectual in a title flowing from the burgh. The respondents do not concede this. They maintain that although this point of construction was apparently so decided in the case of

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the Magistrates of Culross v. Geddes (Hume, 554), that case was not decided upon a general rule, but upon a comparison of various grants by the same magistrates. A similar comparison of the grants by the respondents here shows that they are described as bounded by ‘the sea sands’ on the north. The case thus is not quite the same as the Culross case, where the expressions ‘sea’ and ‘sea-shore’ had been used indiscriminately by the burgh, the inference being that they meant the same thing. If, however, my view of the evidence is well founded, it is unnecessary to decide this point.

Then it is said by the complainer that his right at all events goes down as far as the high-water mark of ordinary spring tides, and that in any view a part (however small) of the boat-slip extension is above that mark and within his property. It appears, however, from the evidence that the sea has been receding at this part for a long period of years, and while I have taken the case on the footing that the complainer's title enables him to follow the sea, provided he can show prescriptive possession, the question how much is carried to him by his title, as being above high-water mark, must be determined, not according to the present high-water mark, but as at the date when the grant was made. For anything that appears, the high-water mark may at that time have come as far as the line where the sleeper fence now stands, being practically a continuation round the bay of the old rubble wall which forms the north boundary of the adjoining properties. I think it was for the complainer to show that it extended to seaward of the sleeper fence, down to which his possession has been clear and exclusive.”

The complainer reclaimed, and argued—The Lord Ordinary was in error in saying that the complainer held no title from the burgh, or had not connected himself with the burgh. He and his authors held the subjects as burgage and were infeft in them. Further, in the titles of 1797 and 1857 produced, the burgh had expressly recognised his authors as the owners of the subjects. The complainer having thus a title which expressly included the ground in dispute, it was for the respondents to show that they had ousted him by possessing it exclusively for the prescriptive period. This they had failed to show. Indeed, the evidence showed that the complainer had made such use of the ground in dispute as he required, and if the public had at times taken sand from this part of the shore, they did so through toleration on his part. His property was bounded by the sea shore, and this gave him right to at least all the ground above high-water mark— Hunter v. Lord Advocate, June 25, 1869, 7 Macph. 899; Opinion of Lord Kinloch, pp. 912 and 913. A proprietor whose land was bounded by the “sea-shore” was entitled to gain ground if the sea receded in the course of time further from the land. In other words, the boundary was not fixed by the line of the shore at the date of the original grant, it varied according as the shore line changed from time to time— Magistrates of Culross v. Geddes, November 24, 1809, Hume 554; Boucher v. Crawford, November 30, 1814, F.C.; Magistrates of Montrose v. Commercial Bank of Scotland, Limited, June 11, 1886, 13 R. 947, 23 S.L.R. 682; Bell's Prin., secs. 642 and 643.

Argued for the respondents—The complainer had failed to connect himself by grant with the burgh. A mere renewal of the investiture was not to be treated as a recognition of the original grant. Before such a grant could be inferred exclusive possession on the part of the complainer and his authors must be instructed— Ayton v. Magistrates of Kirkcaldy, June 4, 1833, 11 S. 676; Jameson v. Police Commissioners of Dundee, December 10, 1884, 12 R. 300, 22 S.L.R. 202; Young v. North British Railway Company, August 1, 1887, 14 R. (H.L.) 53, 24 S.L.R. 763. Boundary by the sea-shore and boundary by the sea were not synonymous expressions, and it had never been unequivocally decided that they were the same in effect as boundaries. Lord Kinloch in assimilating these boundaries in Hunter v. Lord Advocate, supra, had gone too far. In Magistrates of Culross v. Geddes, supra, the boundary in the adjacent feus was the sea, and this fact probably influenced the Court in their decision. Then Boucher v. Crawford, supra, was of no authority, as it would have been reversed by the House of Lords if one of the parties had not died—Opinion of Lord Wood in Paterson v. Marquis of Ailsa, March 11, 1846, 8 D. p. 760. A boundary by the sea-shore did not include the fore-shore and was equivalent to a boundary by high-water mark— Magistrates of Culross v. Earl of Dundonald, June 15, 1769, M. 12,810; Berry v. Holden, December 10, 1840, 3 D. 205. High-water mark must be taken as a boundary fixed at the time when the grant was given out. The magistrates by erecting a fence to the north of the complainer's property in 1853 had shown that they considered that fence the northern boundary of the complainer's property. The magistrates ever since had exclusive possession of the ground north of that fence, and the public as representing the burgh had made use of the ground and taken sand from it. The magistrates were therefore entitled to give the Lifeboat Institution power to build upon what was really fore-shore, and the complainer had no right to prevent them.

At advising—