Scottish Court of Session Decisions

This was an action at the instance of Alexander Nimmo of Westbank, Falkirk, and others, trustees under the antenuptial contract between Mr and Mrs Darling, and as such trustees proprietors of the lands of Candie, situated on the south shore of the Firth of Forth near Grangemouth, against the Caledonian Railway Company.

The conclusions of the action were for declarator in the following terms:—“That the pursuers, as trustees foresaid, are proprietors of the foreshore on the Firth of Forth ex adverso of the farm and lands of Candie, belonging to them, and situated near Grangemouth in the parish of Grangemouth (formerly the parish of Polmont) and county of Stirling … . ( Second) It ought and should be found and declared by decree foresaid that the defenders the Caledonian

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Railway Company are not entitled to interfere with or make erections on or occupy the said foreshore ex adverso of the pursuers' lands or any part thereof without the consent of the pursuers; and the said defenders ought and should by decree foresaid be interdicted, prohibited, and discharged from interfering with or making erections on or occupying the said foreshore ex adverso of the pursuers' said lands, or depositing building or other materials or machinery thereon: And further, the said defenders ought and should be decerned and ordained by decree foresaid to remove from the said foreshore ex adverso of the pursuers' lands all erections made by them thereon, and all building and other materials, machinery, or implements deposited or brought by them thereon, and to flit and remove themselves therefrom, and leave the same void and redd to the end that the pursuers may peaceably possess the same: ( Third) Or otherwise, and alternatively to the conclusions second above written, it ought and should be found and declared by decree foresaid that in respect the defenders the Caledonian Railway Company have entered upon a portion of the said foreshore ex adverso of the pursuers' lands extending to 46 acres or thereby, for the purpose of erecting works thereon in pursuance of the Caledonian Railway Act 1897, the said defenders are not entitled to remain in possession thereof without paying compensation to the pursuers for said portion of the foreshore and for the profits or interest in respect thereof under the provisions of the said Act and of the Lands Clauses (Scotland) Act 1845, and in particular sections 117, 118, and 119 of said last-mentioned Act.”

The question in the case came to be how the boundaries of the portion of the foreshore belonging to the pursuers were to be ascertained.

In their condescendence the pursuers narrated their title, which was founded upon a feu-charter by the Abbot and Chapter of Holyrood House, confirmed by a Crown charter under the Great Seal in 1554, which further contained a no vodamus of the subjects in favour of the vassal. The lands were described as bounded by “the water of Forth and Carron on the north part.” The pursuers made the following averments:—“(Cond. 4) The lands belonging to the pursuers are part of the lands of Little Saltcoats, feued out and disponed under the said feu-charter and Crown charter of confirmation and novodamus, and they are bounded on the north by the Firth of Forth, near the junction of the river Carron with said Firth. Under said charters the pursuers are proprietors of the foreshore ex adverso of their said lands, and they and their predecessors have possessed the said foreshore upon their infeftments from time immemorial. Inter alia, they have possessed said foreshore by leading out drains and drain-pipes over the same for discharging the drainage of their lands thereon, and also by making and maintaining embankments against inundation by the sea. (Cond. 5) By the Caledonian Railway Act 1897 the defenders the Caledonian Railway Company are authorised to construct certain docks and other works partly on the foreshores of the Forth, to the south of where the river Carron joins the Forth. The said defenders commenced the construction of their new docks about November 1898, and the works are still in progress. The said defenders have not acquired or taken or given notice to acquire or take for the purposes of their undertaking any portion of the foreshore belonging to the pursuers as before mentioned. Notwithstanding this, the said defenders have entered on possession of the said foreshore belonging to the pursuers, and are proceeding to erect part of the works in connection with their said docks thereon. The pursuers have called on the said defenders to acknowledge their right of property in the foreshore, but they decline to do so, and they also decline either to remove from the said foreshore or to admit any right in the pursuers to receive compensation from them therefor.”

In their defences the defenders averred:—“Admitted that the defenders have commenced the said operations, and that these are still in progress. Admitted that the defenders have served no notice to treat upon the pursuers, and do not recognise the pursuers' right to any portion of the said foreshore upon which they are erecting the said works. Quoad ultra denied, and explained that the Crown is in right of the said foreshore. There have been negotiations in the matter between the Board of Trade as representing the Crown and the defenders. The result of the said negotiations has been that the Board of Trade have undertaken to give the defenders a valid title to the area of foreshore required to be taken by them for the purposes of their said dock works.”

The pursuers pleaded—“(1) In respect the pursuers have a right of property in the foreshore in question in virtue of their titles and possession condescended on, the pursuers are entitled to decree of declarator in terms of the first conclusion of the summons. (2) In respect the pursuers are proprietors of said foreshore, the defenders the Caledonian Railway Company are not entitled to enter upon or occupy or use the same without their consent, and the pursuers are entitled to decree against them in terms of the second conclusion of the summons. (3) In respect of the illegal actings of the said Railway Company as condescended on, the pursuers are entitled to decree of declarator, interdict, and removing against them as concluded for. (4) Alternatively, the pursuers, as proprietors of said foreshore upon which the said defenders have entered, are entitled to be paid compensation in terms of the statutes, and in particular sections 117, 118, and 119 of the Lands Clauses (Scotland) Act 1845.” The defenders pleaded, inter alia—“(4) The pursuers not being heritable proprietors of any part of the area of foreshore required to be taken by the defenders for the purposes of their said dock works, the defenders should be assoilzied.”

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Proof was allowed and led.

At the proof the pursuers adduced Mr Carfrae, C.E., Edinburgh, as a witness. He produced plans to show that the railway company in constructing their works had encroached on the foreshore belonging to the pursuers to the extent of about sixty acres.

Above the point where the river Carron joins the estuary of the Forth the estuary runs from Alloa in a south-easterly direction, while below the same point it runs down towards the sea in an easterly direction, thus forming a curve or bend convex to the southern shore. Mr Carfrae's plan was drawn upon the principle of taking the actual medium filum of the estuary, being a line running first south-east, then forming a curve, and then running east, and erecting perpendiculars from that medium filum, where it was straight, to the extremities of the land boundaries of the various properties on the south bank where they met high-water mark, and where the medium filum formed a curve taking the centre of the circle which nearly coincided with the medium filum at that part, and drawing radii from that centre which, when prolonged beyond the medium filum, passed through the extremities of the land boundaries at high-water mark. Opposite the lands of Candie the medium filum ran nearly west and east, but the curve in the estuary began about the western end of that part of the medium filum. The defenders led no expert evidence to contradict Mr Carfrae, but they produced a plan, and cross-examined Mr Carfrae to show that the proper method of dividing the foreshore was to take an imaginary line running from north-west to south-east representing the average direction of the medium filum, and dropping perpendiculars upon that line from the extremities of the land boundaries at high-water. The result of dropping perpendiculars upon the imaginary line chosen by the defenders was that the portion of foreshore so designed as effeiring to Candie did not include any part of the foreshore occupied by the defenders.

Mr Carfrae also suggested an alternative method of proceeding by taking two lines, one running nearly west and east and representing the average medium filum of the lower part of the estuary, and another running nearly south-east and north-west, representing the average medium filum of the upper reach, and dropping perpendiculars on these lines.

On 12th July 1902 the Lord Ordinary ( Low) pronounced an interlocutor by which he decerned in terms of the first declaratory conclusion of the summons, and quoad ultra dismissed the action.

Opinion.—“I am of opinion that the pursuers have right to the foreshore ex adverso of their lands, because their title flows from the Crown, and the lands are described as bounded by the Water of Forth on the north.

The question however remains, whether the works which the defenders are constructing encroach upon the portion of the foreshore belonging to the pursuers? The pursuers maintain that the works are being constructed upon their foreshore to the extent of some sixty acres, and they have put in the plan, No. 37 of process, which has been prepared by Mr Carfrae, C.E., for the purpose of showing that that is the case.

That plan is prepared upon the principle of taking the actual medium filum of the estuary and dropping lines perpendicular thereto from the land marches of the property.

Now, I think that it is settled by the cases of M'Taggart, 5 Macph. 534, and Laird, 9 Macph. 699, that the proper method of ascertaining the boundaries of foreshore effeiring to a property situated upon an estuary is to take an imaginary straight line representing the average direction of the middle line of the estuary at low water between two points to be fixed by the Court, and dropping perpendiculars upon that line from the land marches.

Now, it is plain that the imaginary straight line falling to be taken under that rule may differ very materially from the actual medium filum opposite to the property whose seaward boundaries have to be defined. Whether that will be the result or not must depend very largely upon what are the points, to be fixed by the Court, between which the average direction of the middle line of the estuary is to be taken. Here I have no means of forming any opinion upon the subject, but I see from the plan that the estuary takes a very considerable bend immediately after passing the pursuer's property, and if that bend fell within the points to be fixed, very probably the imaginary straight line to be drawn would differ so much from the actual medium filum that perpendicular lines drawn from it to the pursuers' land boundaries would be found to be entirely outside of the defenders' works. I cannot help suspecting that that would in fact be the result of taking an imaginary line between any two points which would fairly give the average direction of the middle line of the estuary, otherwise I do not understand why the pursuers should have perilled their case upon a method of ascertaining the boundaries which was not in accordance with a settled rule.

It was argued, however, that in such circumstances as occur in this case the method adopted by the pursuers is the only one which would lead to a fair result, because if imaginary straight lines were taken, properties which were situated at the bend of the estuary might be cut off altogether from a large part of the foreshore, whereas by taking the actual medium filum each property would get its fair share of foreshore. I see a great deal of force in these considerations, but a definite rule having been deliberately laid down by the Court, I think that I am bound to regard the matter as settled so far as I am concerned.

While, therefore, I think that the pursuers are entitled to declarator that they are proprietors of the foreshore ex adverso of their lands, it seems to me that in the

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circumstances I must hold that it is not proved that the defenders' works encroach upon that foreshore, and dismiss the other conclusions of the summons, because as the pursuers elected to go to proof, I do not think that it would be competent for me, at all events without the consent of the defenders, to adopt any other method of ascertaining the boundaries of the pursuers' foreshore.”

The pursuers reclaimed, and argued—It was clear that the pursuers' titles gave them a right to the foreshore ex adverso of their lands; the only question was how the boundaries of that foreshore were to be ascertained. While there was no fixed rule by which the Court could proceed in fixing the boundaries of the foreshore ex adverso of lands, the method proposed by the pursuers, and described supra, was in accordance with the principles adopted in Campbell v. Brown, November 18, 1813, F.C. 5; Mactaggart v. Macdouall, March 6, 1867, 5 Macph. 534; and Laird v. Reid, March 14, 1871, 9 Macph. 699.

The defenders argued that the pursuers had failed to indicate the proper method of defining the boundary. They cited the following authorities— Keith v. Smyth, November 7, 1884, 12 R. 66, 22 S.L.R. 50; Gray v. Flemings & Richardson, January 9, 1885, 12 R. 530, 22 S.L.R. 338; Magistrates of Tain v. Murray, November 23, 1887, 15 R. 83, 25 S.L.R. 81.

After the hearing, the Court, on 10th March 1903, pronounced the following interlocutor:—“Recall the interlocutor of Lord Low, dated 12th July 1902, except in so far as it finds, decerns, and declares in terms of the first declaratory conclusion of the summons: Find that it has not been proved that the boundary between the property belonging to the pursuers and the property to the west of that property in so far as the said properties consist of shore ground between high-water mark as now existing and low-water mark, has ever been ascertained or defined: Find that the said boundary should now be fixed upon the principle of ascertaining the average line of the centre of the river Forth at low-water opposite to the said properties and dropping a perpendicular on to the said average line from the northern end of the land boundary between the said properties at high-water mark as it existed before any artificial operations were made upon it by either party: Before further answer, remit to Mr John George Bartholomew, geographer, Edinburgh, to lay down on a copy of the Ordnance Survey map a straight line representing the average direction of the middle line of the river Forth at low water opposite to the northern end of the said original land boundary, and also to lay down on the said copy of the Ordnance Survey map a perpendicular from the northern end of the said original land boundary between the said properties to the said straight line, and to report; reserving in the meantime all questions of expenses.”

On 15th March 1903 Mr Bartholomew reported as follows:—“In accordance with the terms of your remit of the 10th inst. and our conversation of the 12th inst., I have provisionally drafted on the accompanying map the average medium filum opposite the Candie and Caledonian properties, and from it I have dropped a perpendicular to the northern end of the land limit between the said properties. I have drawn these lines according to my interpretation of your instructions, as follows:—

Your interlocutor speaks of ‘the average line of the centre of the river Forth opposite to the said properties’—this I take to be neither more nor less than a straight line representing the section of the medium filum opposite to the said properties. The length of this line I have determined by two points—the first being a perpendicular from the straight medium filum at C, as marked on accompanying plan, to the northern end of the eastern land limit of the Candie property at F; the second being a radius from the curve of the medium filum at A to what I take to be the north western limit of the Caledonian property at D. Between these points on the medium filum I have drawn the average line AC. Taking AC as the average centre line of the river Forth opposite the two properties, I have dropped a perpendicular from it at B to the northern end of the land boundary between the Candie and Caledonian properties at E, as shown on the 6 inch survey maps.

Note to above—As the boundary B E thus delineated is a perpendicular from the average medium filum opposite the two properties, it does not show the Candie claim encroaching so much on the Caledonian claim as shown in Mr Carfrae's plan (No. 37 of process), in which the boundary is a perpendicular to the medium filum opposite the Candie property only, but on the other hand it encroaches on the foreshore of the property to the east. If the Powdrake property lying immediately to the west of Candie does not happen to be included in the Caledonian property, and it is not so included on the plans, I cannot see where its independent foreshore would come in according to the present division between Candie and Caledonian.”

On 21st March 1903 the following letter was written, by the instructions of the Lord President, to Mr Bartholomew:—“The Judges of the First Division have now carefully considered your two letters of 15th curt. and the map which accompanied them, and in view of what you say, they would feel obliged if you would be so good as to lay down upon a map (1) the line which you think ought, for the purposes of such a question as the present, to be adopted as the medium filum of the river; (2) a line or lines showing how you consider that the foreshore boundary should be drawn with reference to it; (3) and if you could also show geographically upon the map how the application of the existing rule would affect the foreshore to the east of the property belonging to the pursuers; and (4) any other line or lines which you think would be instructive or illustrative in the present difficult question.”

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On 15th May 1903 Mr Bartholomew replied as follows:—“In accordance with the request contained in your letter of March 21st have laid down on the accompanying map the various points which you have specified.

1. I have marked as AB what seems to me the only practical medium filum, and it is moreover the actual medium filum. It seems to me to solve all the difficulties with regard to the division of the foreshore in a satisfactory manner, and I do not see how the problems can be solved completely in any other way.

2. I have marked in red various lines CD, CD, showing how the foreshore boundaries applicable to the various properties on the river should be drawn with reference to the medium filum A B. These lines C D being radii to arcs of circles, or perpendiculars where the line is straight (for further reference to this point see my letter of March 15th).

3. I have marked the dotted blue straight line E F to illustrate a possible average medium filum which might be considered a fair basis for the division of the foreshores opposite the Caledonian and Candie properties. From E F I have drawn dotted blue perpendiculars showing the limits of foreshore according to this method of division. I wish, however, to point out that this division would clash with and overlap the division on the basis of another possible medium filum G H, which is also an average medium filum applying to the upper adjoining section of the river. Thus, if such a division were adopted now for the properties M N O P on the lower section of the river, it would overlap the division of foreshore for the properties R S T X Y, which might take place at some future time on the basis of the medium filum G H, so that the properties X Y Z would be altogether excluded from participation in the foreshore as far as low-water mark.

4. Another difficulty in connection with the adoption of the average medium filum principle would occur in cases where the perpendiculars from one average medium filum did not cross those from the adjoining medium filum a hiatus or gap would be left, and a section of the foreshore would thus be unallotted.

On looking over the evidence already printed I find that the opinion expressed by Mr Geo. S. Carfrae, C. E., is practically the same as my view of the question.”

On 23rd June 1903 the case was put out for advising.