Scottish Court of Session Decisions

This was an action at the instance of James Aitken, Darroch, Falkirk, and others, the trustees of the deceased Henry Aitken of Darroch, against the Caledonian Railway Company and the Lord Advocate as representing the Crown. The pursuers sought declarator that they were the proprietors of the whole foreshore of the Firth of Forth ex adverso of the lands of North Powdrake and South Powdrake, near Grangemouth; and interdict against the Caledonian Railway Company from interfering with or occupying the foreshore ex adverso of those lands.

Of the grounds on which the pursuers maintained their right to the foreshore it is only necessary, for the purposes of this report, to refer particularly to one, viz., that they had acquired the right by possession of “sea-greens.” The sea-greens consisted of a strip of ground at the edge of the pursuers' lands next the Forth, on which grass grew, which was suitable for pasturage, and which had been possessed by the pursuers and their authors from time immemorial. The foreshore seaward of the sea-greens consisted of mud flats about three-quarters of a mile wide.

There were other facts and circumstances relied on by the pursuers as constituting possession, all of which are related in detail in the opinion of the Lord Ordinary (Low), who on 30th July 1903, after a proof assoilzied the defenders.

Opinion.—“The pursuers are proprietors of the lands of North Powdrake and of one-half pro indiviso of the lands of South Powdrake. These properties are adjacent to each other, and are situated upon the shores of the Firth of Forth to the east of Grangemouth.

The defenders the Caledonian Railway Company are constructing certain harbour works at Grangemouth, which extend over the foreshores of both the properties of Powdrake. The object of this action is to have it declared that the foreshore ex adverso of these properties belongs to the pursuers. The pursuers' claim is opposed both by the Railway Company and by the Crown.

The pursuers have no express grant of foreshore, and the question is, whether they have established right thereto by possession for the prescriptive period.

I shall consider first the evidence in regard to South Powdrake, which raises a simpler question than in the case of North Powdrake.

The pursuers maintain that right to the foreshore ex adverso of South Powdrake has been acquired—(1) by possession of sea-greens, and (2) by opposing in Parliament certain bills by which it was proposed to interfere with the foreshores.

In regard to the first of these points it is proved that sea-greens ex adverso of the lands have been possessed from time immemorial. These sea-greens are a narrow strip lying close to the sea-wall by which the sea is prevented from encroaching upon the cultivated land. To seaward of the sea-greens the foreshore consists of mudflats, which extend to a distance of about three-quarters of a mile. The pursuers contend that possession of the sea-greens gave them right to the whole foreshore, because looking to the nature of the foreshore, that was practically the only kind of possession which was possible. Now if it had been proved that there had been operations upon the foreshore for the purpose and with the effect of extending by artificial means the area of the sea-greens, that might have been sufficient possession to establish right to the foreshore. But as regards South Powdrake there has been nothing of that sort, and what has been possessed has only been a strip of natural sea-greens lying alongside the sea-wall. I do not think that that can be regarded as possession of the foreshore. I know of no authority forsaying that natural sea-greens form part of the foreshore, and they are exempt from the public uses to which the foreshore is liable. Further, the foreshore is the area between low water and high water of ordinary spring tides. Sea-greens are not within that area, because although they are occasionally covered by the sea they are not covered by ordinary tides. Indeed, I understand the grass of which

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sea-greens is composed can only exist upon ground that is not covered by the ordinary tides.

As to the second point, I do not think that the opposing of bills in Parliament can be regarded as possession at all, although it may have amounted to an assertion of right or a claim to the foreshore

I am therefore of opinion that the pursuers have not established right to the foreshore ex adverso of South Powdrake.

Turning now to North Powdrake, the pursuers obtained in February 1874 a disposition from the Crown of part of the foreshore ex adverso of that property.

The memorial which the pursuers sent to the Board of Trade when applying for a grant of the foreshore states that the reason of the application was that they had agreed to allow the Caledonian Railway Company to deposit upon the foreshore earth to be excavated in making the new dock, and that under the agreement the pursuers were ‘obliged to purchase any right the Crown may have in the foreshore in order to allow the Caledonian Railway Company to deposit the before-mentioned earth on the alveus or foreshore.’

The pursuers applied for a grant of the whole of the foreshore ex adverso of North Powdrake, but the Crown only disponed to them a portion thereof, extending to 76 acres, which left some 39 acres between the portion granted and low-water mark to which the pursuers did not obtain an express title.

Of course there is no dispute in regard to the portion of the foreshore contained in the Crown grant of 1874, but the pursuers maintain that they have also right, by virtue of the possession had by them and their authors, to the portion of the foreshore not included in the grant.

The pursuers have since 1874 reclaimed a considerable portion of the foreshore ex adverso of North Powdrake and planted it with grass. These operations, however, were entirely within the area acquired from the Crown, and cannot therefore, in my judgment, be founded on as giving right to the area outside of the Crown grant. I think that it is impossible to regard operations following the grant, and upon ground included in the grant, as being possession, adverse to the Crown, of an area outside the grant, and upon which no operations were conducted.

In order that the pursuers may succeed, therefore, I think that it is necessary for them to show that in 1874 they had already acquired, by possession for the prescriptive period, a right to the whole foreshore, and that the Crown disposition of that year (for which by the way they appear to have paid some £350) was unnecessary, as the right which they purchased was already in them.

The pursuers rely, in the first place, as they do in the case of South Powdrake, upon possession of natural sea-greens, and petitions presented to Parliament. For the reasons which I have already given, I do not think that these acts avail them.

In the next place, the pursuers say that by a sea-wall which was built about 1835 a small part of what had previously been foreshore was taken in. I do not think that that is proved, because it seems to be plain that any ground which was brought within the sea-wall in 1835 was taken from the sea-greens and not from the foreshore proper.

Then Mr Aitken, one of the pursuers, produced a copy of entries appearing in account books relating to North Powdrake, which he said showed that considerable sums of money were expended between 1842 and 1880 ‘with a view to silting up the foreshore and planting grass.’

The first entry is dated 23rd March 1842, and is in these terms—‘To paid Mr Black for plan of sleeches at Powdrake, £2, 17s. 6d,’ and in 1845 a sum of 5s. is entered in the same terms. ‘Sleeches,’ I may explain, is the local name for the mud-flats. Now, getting a plan made of the foreshore is not in itself an act of possession, and the inference rather seems to be that the plan referred to was made in view of a proposed arrangement with Lord Zetland, which was actually carried out in 1849, and to which I shall refer presently.

The next entries founded on do not occur until 1849, when there are four sums, amounting in all to £41, which are entered as ‘paid Malcolm to account contract at Powdrake.’ Mr Aitken, however, admits that he cannot ascertain what these sums were paid for, and there is nothing to show that the work had anything to do with the sleeches.

The same remark applies to subsequent entries up to 1877, when the pursuers having obtained the disposition from the Crown, expended a considerable amount in reclaiming part of the foreshore and planting grass upon it. For the reasons which I have already given, I do not think that that expenditure, being subsequent to the Crown grant of 1874, and made upon foreshore included within that grant, can be founded on by the pursuers. Accordingly I do not think that the entries in the old account books aid the pursuers.

I now come to what happened in 1849. North Powdrake is bounded on the west by the lands of Panstead, which belonged to the Earl of Zetland, and in 1849 an agreement was entered into between the late Mr Henry Aitken, the then proprietor of North Powdrake, and the Earl.

The agreement proceeds upon the narrative that the two properties were separated by an open ditch, having a tunnel at the northern extremity thereof (where, I suppose, it passed through the sea-wall) for the purpose of carrying the water from the lands to the Forth; that in consequence ‘of the silting up of the sleech ground beyond the high-water mark, the tunnel had been rendered useless, and the arable lands of the parties were in danger of being flooded; and that ‘in order to guard against the risk of danger to their said lands,’ the parties had agreed to the articles and conditions following.

Upon that narrative the parties agreed first that a line coloured red upon a relative

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plan should ‘be held and acknowledged as the only march or boundary between the sleech grounds corresponding to the said lands of Panstead and those corresponding to the said lands of Powdrake’; and secondly, that Lord Zetland should be empowered, at his own expense, to construct a sea-wall along the line coloured red until it reached the embankment of the river Carron, and that the line should be the centre of the area occupied by the sea-wall, or in other words, that the sea-wall should be erected to the extent of one-half upon the part of the foreshore which by the agreement had been apportioned to Powdrake. In the third place, it was agreed that in order to form a proper outlet for the water, a new ditch and a new tunnel, in lieu of the old tunnel, should be made at mutual expense, the ditch to be carried the whole length of the proposed sea-wall, and carried under the embankment into the river Carron. In the fourth place, it was agreed that ‘when the said intended seawall is constructed, and the said Henry Aitken and his successors shall have reclaimed the sleech ground corresponding to the said lands of Powdrake, but not sooner,’ the sea-wall should be acknowledged as the march ‘between the sleech lands of Panstead and the sleech lands of Powdrake,’ and should be maintained at mutual expense in all time coming,

It was further agreed (article six) that in the event of the Crown successfully claiming ‘the sleech ground to be acquired from the river Forth by the construction’ of the sea-wall, Mr Aitken, or his representatives, should be bound to refund to the Earl of Zetland one-half of the cost of the wall.

The sea-wall was thereafter erected by Lord Zetland, and is shown upon the plan No. 203 of process running from the western boundary of North Powdrake to the embankment of the river Carron. The seawall, in so far as it is situated upon foreshore ex adverso of Powdrake, is entirely upon the portion of the foreshore disponed by the Crown to the pursuers in 1874.

The effect of the erection of the sea-wall appears to have been that the ‘sleeches’ upon the Powdrake side silted up to some extent, with the result that the area of the sea-greens extended considerably. Mr Aitken may also have aided that process by laying down branches to retain the silt, but there is no clear evidence that he did so.

Now, I think that the erection of the sea-wall was a clear act of possession, and it is also in my opinion the first act of possession of the foreshore on the part of the proprietors of North Powdrake which is proved. I am therefore inclined to think that if the pursuers had not taken the disposition from the Crown in 1874, the erection and maintenance of the wall might have been sufficient to establish their right to the whole foreshore.

If, however, I am right in thinking that the erection of the sea-wall was the first act of possession, then, as the law then stood, it would have required the elapse of forty years before an unchallengeable right to the foreshore could have been set up. But that period had not expired when in February 1874 the pursuers obtained the disposition from the Crown of the portion of the foreshore upon which the sea-wall had been erected, and I think that thereafter their possession must be ascribed to that disposition. The pursuers argued that this was really a case of double titles, and that they were entitled to attribute their possession to the title which was most favourable to them. Even assuming that the rules laid down in regard to double titles in cases of disputed succession apply to such circumstances as exist in this case, I am of opinion that the argument is not well founded, because I do not think that the pursuers ever had a double title. If the view which I have taken of the facts is sound, the pursuers had no title to the foreshore when they took the disposition of 1874. They had then a title to the lands of North Powdrake which admittedly afforded a good basis of prescription, but they had not at that date possessed the foreshore there under for the prescriptive period. In 1874, however, they obtained an express title to the greater part of the foreshore, and possession was not required either to explain or complete the right which they thereby obtained. Conversely it seems to me that possession under the disposition of 1874 of the subjects thereby conveyed, and of nothing more, could never give the pursuers a right to foreshore not included in the conveyance. It might have been different if the pursuers had actually possessed the portion of the foreshore not included in the Crown grant. If, for example, the sea-wall had extended into that portion of the foreshore, the pursuers might have successfully contended that they had continued to possess it all along under their title to the lands. But no such thing has happened. On the contrary, the pursuers have never had any possession whatever of any part of the foreshore which lies beyond the limits of the Crown grant.

I am therefore of opinion that the pursuers have also failed to establish the right which they claim to the whole foreshore ex adverso of North Powdrake, and I shall therefore assoilzie the defenders from the conclusions of the summons.”

The pursuers reclaimed, and argued—The case of Bruce v. Rashiehill, November 25, 1714, M. 9342, relied on by the defenders, did not decide that sea-greens were not part of the foreshore. In the present case, as the foreshore other than the sea-greens was incapable of use or possession, possession of the sea-greens was to be interpreted as possession of the whole foreshore—Ersk. ii. 1. 30; Bell's Prin. 2020; Agnew v. Lord Advocate, January 21, 1873, 11 Macph. 309, 10 S.L.R. 229; Lord Advocate v. Wemyss, July 31, 1899; 2 F. (H.L.) 1, 36 S.L.R. 977; Lord Advocate, &c., v. Lord Blantyre, June 19, 1879, 6 R. (H.L.) 72, 16 S.L.R. 661; Buchanan & Geils v. Lord Advocate, July 20, 1882, 9 R. 1218, 19 S. L.R. 842; Young v. North British

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Railway Company, August 1, 1887, 14, R. (H.L.) 53, 24 S.L.R. 763; Auld v. Hay, March 5, 1880, 7 R. 663, 17 S.L.R. 465.

Argued for the respondents—Sea-greens were not part of the foreshore—Rankine, Land Ownership, 3rd ed., 249; Bruce v. Rashiehill, cit. sup.; Ersk. ii. 6, 17; Bell's Prin. 644. Such meagre possession as was here proved could not set up a title to the whole foreshore— Keiller v. Magistrates of Dundee, December 7, 1886, 14 R. 191, 24 S.L.R. 120. The pursuer's averments as to boundaries did not aid them— Darling's Trustees v. Caledonian Railway Company, June 23, 1903, 5 F. 1001, 40 S.L.R. 785.

At advising—