Scottish Court of Session Decisions

John Hope of St Mary's Isle, Kirkcudbright, brought an action in the Sheriff Court at Kirkcudbright against John Bennewith, residing in Peter Street, Workington, Cumberland.

The prayer of the action was in the following terms—“To interdict the defender from entering upon or trespassing, or from sending any dog, upon the following subjects, or either of them, the property of the pursuer, viz., the island known as ‘The Inch,’ in the parish and stewartry of Kirkcudbright, lying adjacent to St Mary's Isle in said parish and stewartry, and the foreshore of Kirkcudbright Bay adjacent to St Mary's Isle aforesaid, and extending from high-water mark to the black line shown on the plan annexed and subscribed as relative to a disposition and conveyance of said foreshore granted by the Honourable James Kenneth Howard, one of the Commissioners of Her Majesty's Woods, Forests, and Land Revenues, and the Commissioner to whom the management and direction of and the duties and powers in relation to the Land Revenues of the Crown in Scotland had been assigned, in favour of the Right Honourable Dunbar James Earl of Selkirk, dated 23rd, and recorded in Chancery 31st, both days of October 1860, or in any other way interfering with the pursuer's possession thereof, and also from shooting, or catching, or killing, or trying to catch or kill any birds, hares, rabbits, or other animals on said subjects; and to find the defender liable in expenses.”

The pursuer averred that he was proprietor of the lands of St Mary's Isle, and of an island known as the Inch, in Kirkcudbright Bay. He further averred that he was proprietor “of the foreshore of Kirkcudbright Bay adjacent to and ex adverso of St Mary's Isle and the Inch, as disponed by disposition and conveyance by the Commissioners of Her Majesty's Woods, Forests, and Land Revenues, in favour of the Right Honourable Dunbar James Earl of Selkirk, dated 23rd, and recorded in Chancery 31st, both days of October 1860, conform to notarial instrument in pursuer's favour recorded in said Division of the General Register of Sasines 16th June 1894.”

In support of the prayer for interdict the pursuer made, inter alia, the following averments—“The pursuer and his predecessors have been in the undisputed exclusive possession and use of said lands and estate of St Mary's Isle for two hundred years, and of said foreshore since it was acquired by purchase from the Crown in the year 1860. All the rights incident to the ownership and occupancy of said foreshore, including that of wildfowl shooting, have been exercised exclusively by the pursuer and his predecessors since its acquisition in 1860. Denied that the public generally have at any time, or at least since the year 1860, exercised any right of entering upon the foreshore in question, or of shooting wildfowl thereon. The said foreshore belonging to the pursuer was acquired from the Crown by the said Earl of Selkirk for the express purpose of preserving the privacy and amenity of St Mary's Isle and preventing trespassing. The possession and use of said foreshore by pursuer is necessary for the privacy and amenity of St Mary's Isle and the Inch. The said foreshore is of no utility for purposes of navigation or white fishing, and since it was acquired from the Crown in 1860 the public have been excluded from it, and have never entered upon, or made use of, or claimed any rights over it for any purpose. On 21st October 1903, between the hours of six and seven p.m., defender, who was armed with a gun and had a bag slung on his back, entered or trespassed upon said foreshore belonging to pursuer between St Mary's Isle and said island. At same time a retriever dog which accompanied defender hunted on said island. Defender was challenged by an under-gamekeeper in the employment of the pursuer for trespassing, but he asserted his right to enter upon said foreshore, and refused to desist from doing so. When challenged defender was on the foreshore about thirty-six yards north of the said island, and between it and St Mary's Isle. On one occasion prior to said 21st October 1903, viz., in the month of January 1901, defender, armed with a gun, entered or trespassed upon said foreshore, near the same spot, and was warned by the pursuer that he must not do so again. On that occasion the defender gave a false name when asked by the pursuer who he was The pursuer apprehends that the defender may continue his acts of trespass, and is desirous of preventing him from doing so.”

Bennewith lodged defences, in which he did not aver any right to the foreshore except that of a member of the public. He pleaded, inter alia—“(3) The pursuer's averments are irrelevant and insufficient to support the prayer of the petition.”

On 15th January 1904 the Sheriff-Substitute ( Napier) pronounced the following interlocutor:—“Finds in fact that the defender admits that he was on the foreshore surrounding St Mary's Isle on or about 21st October 1903 with a gun which he had with him for the purpose of shooting on the foreshore: Finds in law ( first) that the

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pursuer has no right to prevent the defender from being upon the said foreshore; ( second) until the pursuer establishes judicially, if he be able to do so, in a suitable process, such as an action of declarator, that he has the exclusive right to the shooting on the said foreshore, he has no right to prevent the defender from shooting on it: Therefore assoilzies the defender from the conclusions of the action so far as these purport to interdict him from being on the said foreshore: Quoad ultra dismisses the action.”

Note.—“In this case the defender avers that he has regularly from time to time entered upon the foreshore of St Mary's Isle and has shot wildfowl thereon. The pursuer denies that he has done so to his knowledge, but he avers, and the defender admits, that he was on the foreshore with a gun on 21st October last for the purpose of shooting. In these circumstances the pursuer asks that the defender be interdicted (1) from being on the foreshore; (2) from shooting over it. In my opinion the pursuer is not entitled to obtain such an interdict. First, as to the crave for interdict against entering on or being upon the shore. In my opinion no proprietor can prevent a member of the public from being upon the foreshore, and in particular that the pursuer cannot. The pursuer's title to the foreshore is a disposition by the Commissioners of H.M. Woods and Forests in favour of the pursuer's author, the late Earl of Selkirk, granted in 1860. It conveys to the pursuer—not the foreshore itself—but ‘all and whole the right, title, and interest of Her Majesty and her foresaids in and over that parcel of the foreshore of Kirkcudbright Bay’ which is described in the disposition, under burden of all servitudes or rights-of-way over it.’ Now I take it that the pursuer could not have a higher right than the Crown title gave him, and not only is a Crown title strictly construed against the grantee ( vide Lord Cockburn in Officers of State v. Smith, 8 D. 711), but the Crown is trustee for the public as regards foreshores (E. 2, 1, 6, and 2, 6, 17). It therefore cannot be supposed to have granted away a right on the part of the public to be on the foreshore, which in normal circumstances the public clearly possesses. A private person may undoubtedly acquire right to a foreshore, but the right so acquired is very different from the right which the owner of land has to it. The terms of the pursuer's title in a marked manner point to this distinction. In particular, private rights in the foreshore are burdened with all public rights. The public rights are (1) the public right of navigation—B.P. 645; (2) the public right of fishing—B.P. 646; (3) other uses of the shore. These are such rights or uses as taking kelp, the convenience of bathing, the right of the public to use the seashore for passage or recreation—B.P. 647. Of these the only one that is absolutely inalienable is navigation. The other rights and uses, including fishing, are apparently alienable. But it is not to be assumed that the Crown would alienate in favour of a private proprietor any rights which the public have over it. At least if it does so it is thought that it must do so expressly, as it certainly can do. For instanse, no one can doubt that the Crown can confer an exclusive right to an individual to a part of the shore, as when it grants the shore for the purpose of making a harbour. Again in the Kessock case ( Baillie v. Hay, 4 Macph. 625) the owner of a ferry was allowed, without objection on the part of the Crown, to build a quay on the foreshore ( vide the opinion of the Lord Justice-Clerk). In the present case, besides, one would certainly have expected to find a clause expressly conferring right on the pursuer to exclude the public, because he avers (Cond. 2) that the foreshore was acquired by the Earl of Selkirk for ‘the express purpose of preserving the privacy and amenity of St Mary's Isle and preventing tresspassing.’ The natural inference, therefore, from the absence of such a clause, is that the Commissioners of Woods and Forests refused to insert it, either because they did not want to do so or because they considered that they had no right to do so. In the next place it is to be noted that no proprietor has ever before tried to interdict a member of the public from being on the shore. This fact is all the more noteworthy when it is remembered that an interdict against being on the shore at all would be such a very simple remedy to protect rights which proprietors of foreshores have hitherto tried to protect. There are many cases in the books where proprietors have interdicted, or tried to interdict, persons from taking sand, sea-ware, shell-fish, &c., from the sea-shore. It seems to me that it would, in many of the cases, have been a much simpler remedy, if it had existed, to have interdicted the persons who were taking the sand or sea-ware from being on the shore at all. The presumption is therefore against a proprietor having the right to do so. In the next place, distinguished judges have expressed opinions in which the right of the public to be on the shore is, I think, recognised. Thus in The Officers of State v. Smith, 8 D. 711, Lord Cockburn said that ‘it (namely, the encroachment which was interdicted) may injure navigation and must injure recreation and free passage. The Lord Justice-Clerk said—‘I have no doubt, however, in further holding that one of the public uses to protect which the Crown has either a right of property in or of guardianship over the shore, is the common use of the shore by the subjects.’ This statement is the more valuable because it was expressly approved of by Lord Brougham ( Smith, 6 Bell's Ap. 487). Again in Saltoun v. Park, 20 D. 89, where Lord Saltoun claimed the foreshore ex adverso of his property of Philorth, near Peterhead, Lord Justice-Clerk Hope stated that his Lordship's right ‘to the sea-shore is necessarily burdened with the prerogative of the Crown as trustee for such rights of the public as can be exercised without interfering with the rights of the proprietor.’ Subject to that qualification, the

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Court held that Lord Saltoun's right to the foreshore had been made out. Again, in a case regarding the foreshore of the Clyde at Port Glasgow— Hagart v. Fyfe, 9 Macph. 127—Lord Neaves said, ‘Even if the petitioner had a title which gave him an absolute right to the foreshore, that would not give him a right to exclude the public from the shore so long as it remained a shore.’ This opinion was stated by the same distinguished Judge, who, two years later, took part in deciding the leading case of Agnew v. Lord Advocate, 11 Macph. 309, which Mr Blackburn in his able argument for the pursuer founded on, where the Court held that the shore in question belonged to Sir Andrew Agnew. In that case Lord Neaves, who concurred in the judgment, again stated, ‘In one sense the foreshore is undoubtedly inter regalia, that is so far as regards public uses for navigation and other public purposes.’ Again in Buchanan v. Lord Advocate, 9 R. 1218, Lord Mure stated that the fact that a witness for the Crown having taken a walk or a shot on the shore did not prevent it from belonging to Mr Buchanan. In the same case Lord Deas also says that the public may have a right to walk on the shore. On the other hand, there are dicta in the Books, such as a statement of Lord Justice-Clerk Hope in the case of The Officers of State v. Smith, which may point to the conclusion that a proprietor might by exclusive possession exclude the public from the shore. I do not presume to question any such dicta. But even if they are binding on me, in my opinion they do not help the pursuer, as he cannot possess a higher right than the Crown title gave his author in 1860. Now, the Crown title did not, I think, give him the right to exclude the public from the shore, because in 1860 I infer and hold that the shore was public. I need only add further that, as far as I know, the Crown or a proprietor of the shore has every beneficial use to which it can be put, such as the exclusive right to take some shell-fish, sand, or sea-ware, &c., and prevent others doing so. Parker v. Lord Advocate, 4 F. 698, decided two years ago, for instance, establishes that the Crown has the exclusive right to mussel-beds. But such rights can be exercised without excluding the public. On the whole matter, for these reasons, my opinion is that the pursuer has no right to interdict the defender from being on the shore. In the second place, the pursuer also wants to interdict the defender from shooting on the shore. On this part of the case it is, I think, correct to say that there is no authority for the proposition that the public have the right to shoot on the shore. But on the other hand these considerations may be kept in mind—(1) It is, I fancy, at least doubtful if the pursuer's rights in the foreshore give him any special right to the wildfowl. They are in law wild animals, and therefore belong to the first captor. (2) It is notorious that the public shoot over a large part of the foreshore in Scotland; (3) the law does not protect game on the foreshore, as in my opinion, it is very doubtful if either the Day Trespass Act or the Night Poaching Act apply to foreshores; (4) so far as the shore resembles the highway, the public may have the right to shoot on it, because they have still at common law, except so far as restricted by statute, the right to shoot on a highway ( vide, in the opinion of Lord Craighill in Simon v. Reid, 4 Coup. 220); (5) Erskine v. Masson, reported in Guthrie's Select Sheriff Court Cases, 453, is, if good law, directly in point and in the defender's favour. It was not appealed, though Mr Erskine had the same interest as the pursuer has here. In the absence of higher authority, therefore, I follow it to the extent of holding, not that shooting on the shore is a public right, but of refusing to grant interdict until the pursuer has, if he can, established his exclusive right to shoot. For these reasons, it appears to me that before asking interdict the pursuer must, if he can, have his right to the exclusive right to shoot on the foreshore made good in an action of declarator. No doubt the present case could be easily amended by having declaratory conclusions and suitable averments added. But I understood that both parties desire my judgment on the record as it stands. Accordingly, as regards this crave, I have dismissed the action.”

The pursuer appealed, and argued—The pursuer was entitled to the interdict craved. The question raised was as to the right of members of the public on the foreshore in a question with a disponee from the Crown. Admitting that certain rights were held by the Crown in trust for the public, and were therefore inalienable, these rights were only to use the foreshore for navigation and white-fishing. Except for these purposes a member of the public had no right to be on the foreshore at all, unless wider rights had been acquired by prescriptive use—Bell's Prin., sec. 646, 647; Nicol v. Blaikie, December 23, 1859, 22 D. 335; Darrie v. Drummond, February 10, 1865, 3 Macph. 496; Duncan v Lees, December 10, 1870, 9 Macph. 274, 8 S.L.R. 218. Thus it was held, in an action of declarator of right-of-way, that the foreshore could not be the terminus of the way, because it was not a public place— Darrie, supra. The dictum of Lord Watson in Young v. North British Railway, December 8, 1885, 13 R. 314, 14 R. (H.L.) 53, 24 S.L.R. 763, where, speaking of the foreshore, he said, “The proprietor cannot exclude the public from it at any time,” meant that the proprietor could not interfere with the rights of fishing and navigation. Here it was relevantly averred that from the nature of the ground neither fishing nor navigation were possible, and therefore the interdict might be in absolute terms. English authorities clearly showed the limitations of the right of the public in the foreshore. Thus there was no right to bathe— Blundell v. Catterall, 1821, 5 B. & Ald. 268; Brincqman v. Matley, [1904], 20 T.L.R. 180; or to hold a prayer

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meeting— Llandudno Urban Council v. Woods [1899], 2 Ch. 705. In the cases where the right of the public to be on the foreshore had been sustained— Smith v. Officers of State, March 11; 1846, 8 D. 711, affd. 1849, 6 Bell's App. 487; Hagart v. Fyfe, November 15, 1870, 9 Macph. 127, 8 S.L.R. 113; Keiller & Scott v. Magistrates of Dundee, December 7, 1886, 14 R. 191, 24 S.L.R. 120—there was evidence of prescriptive use by the public. Any observations in the judgments extending the public rights were merely obiter. But even assuming that a member of the public had a right to be on the foreshore, he had no right to shoot there. The right to be on land carried no right to shoot— Livingstone v. Breadalbane, April 13, 1791, 3 Pat. App. 221; Wellwood v. Husband, February 11, 1874, 1 R. 507, 11 S.L.R. 240. Shooting on the foreshore had been regarded as an evidence of prescriptive use adverse to the proprietor— Geils and Buchanan v. Lord Advocate, July 20, 1882, 9 R. 1218, 19 S.L.R. 842, per Lords Mure and Deas. It was a right which might be acquired by prescription, but which did not otherwise exist. That was sufficient to justify interdict here, as there was a relevant statement that the respondent had shot and asserted his right to shoot.

Argued for the respondent—The action was irrelevant. The crave for interdict against entering on the foreshore could not be granted, because it would exclude the respondent from a right which he admittedly possessed, to enter on the foreshore for purposes of navigation and white-fishing. But the right of a member of the public was to be on the foreshore quite apart from navigation or white-fishing. This was established by a train of authorities— Smith v. Officers of State, Hagart v. Fyfe, Keiller & Scott v. Magistrates of Dundee, and Buchanan & Geils v. Lord Advocate, cit. sup.; Paterson v. Marquis of Ailsa, March 11, 1846, 8 D. 752; Young v. North British Railway, cit. sup.; Darrie v. Drummond, cit. sup., per Lord Deas, 3 Macph. 500. Although it might be true that the right of the public to be on the foreshore merely for purposes of recreation or passage was not definitely decided in these cases, because there was evidence of prescriptive use, that did not derogate from the generality of the law as laid down in the opinions of the Judges. If a member of the public had, as the cases above cited established, the right to be on the foreshore, there was no law to prevent his shooting there. By shooting wildfowl no right of the proprietor of the foreshore was infringed. Wildfowl were not property like kelp or mussels. The only right which a proprietor had to prevent shooting was founded on the law of trespass—Stair, ii. 1, 5. The English cases referred to by the pursuer were not authorities in questions of this kind, which must be decided by Scots law solely— Parker v. Lord Advocate, March 18, 1902, 4 F. 698. 39 S.L.R. 537, affd. May 17, 1904, 41 S.L.R. 491. If they were to be considered, the case of Blundell v. Catterall, cit. sup., had been much criticised, and followed with reluctance—Moore on Foreshore (3rd ed.), 833, 851; Callis on Sewers, 91; Elphinstone on Deeds 580; Mace v. Philcox, 1864, 15 C.B. (N.S.) 600, per Earle, C. J., at p. 611. Even if the pursuer had an exclusive right to shoot on the foreshore, he could only establish that right by a declarator, not by a summary process such as interdict. The right of the members of the public was that of the beneficiaries in a trust held by the Crown for their benefit, not merely a right of servitude, and the limitations of that right, if they existed, must be established by declarator before any summary proceedings could be competent— Dalrymple v. Chalmers, February 3, 1886, 1 White 37, 13 R. (J.C.) 34, 23 S.L.R. 358; Colt v. Webb, November 13, 1898, 2 Adam 91, 1 F. (J.C.) 7, 36 S.L.R. 57.

At advising—