Scottish Court of Session Decisions

LORD HUNTER'S OPINION.—On or about 4th July 1958 an excavation team organised by the University of Aberdeen, which is the defender first called, were engaged in a project of excavation on St Ninian's Isle, in the parish of Dunrossness, in the Shetland Islands. In the course of excavation the team found a number of articles which are referred to in the conclusions of the summons as "The St Ninian's Isle treasure," a description which begs one of the main questions in the case. The articles found consisted of twelve brooches, seven bowls, a hanging bowl, certain other smaller metal work and a porpoise bone, amounting in all to twenty-nine objects. With the exception of the porpoise bone all of the objects are compounded of silver alloy containing copper as a minor constituent together with smaller quantities of lead and tin. In addition several of the objects have a gilt overlay. The twelve brooches are penannular of varied designs. The seven bowls each measure between five and six inches in diameter. The hanging bowl measures five and a half inches in diameter with gilt escutcheons. The smaller metal work comprises a silver spoon, a single-pronged implement with a small projecting cutting edge, a gilt sword pommel, three small conical mountings and two horseshoe-shaped mountings or chapes. These twenty-nine objects were found in the remains of a wooden box under a small stone slab. This slab was inscribed with a cross and was at the time of its discovery situated below the present ground level in the vicinity of a side altar of a church. The foregoing facts are common ground between all the parties, but it is not matter of admission by the first-named defender that the objects were hidden. The averment to this effect by the pursuer in article 2 of the condescendence is met by a "not known and not admitted" in answer 2 for the first-named defender, though answer 2 for the second-named defender, who is said by the defenders to be the owner of the site at which the objects were found, is not qualified in this way. In article 3 of the condescendence, which, like the answers thereto, contains a certain amount of legal argument as well as averments of fact, the pursuer avers that all the objects comprised in the St Ninian's Isle treasure were at one time in ownership and, date from the eighth and ninth centuries of our era. He further avers that the objects are precious things which were hidden by their then owners at the site at which they were found in order that they might thereby be preserved for their owners or owners, and his or their successor or successors. The pursuer also offers to prove that for a long period prior to the date at which the treasure was found no memory thereof was extant and that on the said date, and ever since, no owner of the said objects apart from the Crown existed. This averment is followed by the contention that the Crown is now the owner of the St Ninian's Isle treasure and is the only successor of the owner or owners by whom the treasure was hidden at the site. Both defenders deny the greater part of these averments, but they believe it to be true that all the objects were at one time in ownership and that for a long period before they were found no memory of them was extant. The defenders for their part offer to prove, inter alia, that the objects constitute part of the moveable wealth of an early Celtic Church which flourished on the side during the eighth and ninth centuries of our era, that some of the objects were probably used in connexion with the ritual which was practised in that church, and, accordingly, that it is a reasonable presumption that the objects formerly belonged to that church. The first two of the foregoing averments are not known and not admitted by the pursuer; the third, which is partly a legal contention, is covered by a general denial. The pursuer also meets with "not known and not admitted" averments to the effect that the excavation was carried out by the team with the full consent of the second-named defender.

The story so far is of an interesting antiquarian discovery and, but for one specialty, so it might have remained. The specialty is this—that the lands on which the objects were found were udal lands. This is not a matter of specific admission in the pleadings but the Solicitor-General intervened early in the opening speech for the defenders and expressly stated that the fact was not disputed for the purposes of the discussion in the Debate Roll. It seems clear enough from the disposition, No. 14 of process, that this concession could hardly have been withheld, since I assume that the site was somewhere on the eighteen merks udal land of St Ninian's Isle mentioned on page second thereof. The fact that the objects were found on udal land has been the cause of much legal research and has given rise to a number of intriguing and by no means easy legal questions. On one side of the dispute stands the Crown claiming the objects as treasure or, alternatively, as things lost, abandoned and ownerless, under the principle quod nullius est fit domini regis. On the other side stand the first-named defender in the capacity of finder of the objects, and the second-named defender in the capacity of owner of the solum in which the objects were found. The defenders were jointly represented and presented a common argument. Their attitude on record is mainly negative and so was much of the argument, as one would expect in the light of their pleas of no title to sue and relevancy, but the defenders' averments do foreshadow a more positive approach which was considerably developed in argument and which claims ownership of the objects for the second-named defender on the ground that as udaller he enjoys the plenum dominium of the lands on which the objects were found, and in respect of that plenary ownership is the owner also of the objects found in the land. The right of the Crown to treasure, it was argued, is an incident of the feudal system and does not apply to udal lands where the tenure is allodial in character. Moreover, according to the defenders' argument, the maxim quod nullius est fit domini regis is not applicable since the objects in the present case are not ownerless but are, for the reasons stated, the property of the udaller with whose consent they are in the possession of the first-named defender. In any event, the defenders argued, it is for the Crown to show, if it can, that the objects are ownerless, and the Crown must, therefore, undertake the burden of proving, inter alia, that they are not owned by the udaller or by some other person or persons, for example, the Celtic Church referred to on record, or its successors.

As a first stage in the solution of the problems to which the present case gives rise, it is necessary to understand why, to what extent, and in what respects, the law applicable in the Orkney and Shetland islands differs from that which would apply on the mainland of Scotland. That there are differences there is no doubt and, although there have been substantial encroachments, some of the differences which survive can be described as fundamental. The origin of these differences is to be found in a rather unusual historical accident to which reference is made in the pleadings and some of the effects of which were considered in Smith v. Lerwick Harbour Trustees, (1903) 5 F. 680, and Lord Advocate v. Balfour, 1907 S. C. 1360. The historical details were referred to by the Lord Ordinary, who was Lord Johnston, in the latter case at pp. 1366 to 1368, and an account of the history is also contained in the article on Udal Law in the Encyclopedia, of the Laws of Scotland vol. XV, of which the late Mr W. P. Drever, a solicitor at Kirkwall, and the late Lord Wark were the authors. I shall, therefore, do no more than summarise the history here.

Prior to 1468 the Islands of Shetland, like those of Orkney, were governed by the law of Norway, and the parties agreed that the feudal system had not prevailed there, but that land was held on allodial or udal tenure. In 1468 and 1469 Christian I of Norway impignorated the sovereignty of Orkney and Shetland, together with the Crown property there, in security of an unpaid portion of the dowry of the Princess Margaret, who became the wife of James III of Scotland. It appears that this pledge was never redeemed and it is said by some authorities that the right of redemption has been renounced. See, e.g. Craig, Jus Feudale, I, xv, 14. At any rate, the impignoration is the basis on which the sovereignty of the British Crown over Orkney and Shetland rests.

Reference is made on record to the Act 1540, cap. 19, one of the several Acts of Annexation by which lands in Orkney and Shetland were made part of the annexed patrimony of the Crown and which, at any rate in the early days and in relation to the obtaining of parliamentary sanction to alienation, seem to have been as much honoured by the Crown in the breach as in the observance. In the end, however, counsel on both sides were in agreement that the Acts of Annexation have no bearing on the issues which have to be decided in the present case.

In the earliest years after the impignoration I think the official attitude was that Orkney and Shetland should enjoy their own laws and customs and should not be subject to the municipal law of Scotland. This at any rate appears to be the intention of the Act 1567, cap. 48, to which I was referred. Assuming that it is not in desuetude, I do not pause to examine the authenticity of this rather oddly presented piece of "legislation" or to consider the vexed historical question whether it did or did not receive the Royal Assent. The defenders at no stage pitched their argument so high as to support the bald proposition that in modern times there is one system of law for the mainland of Scotland and another and wholly different system for the Orkney and Shetland Islands. Their propositions were wisely of a much more limited character and counsel for the pursuer were equally well advised in refraining from the contention that the Act of Privy Council of 28th May 1611 (R.P.C. IX, pp. 181-182) effected at one stroke the total abolition of all differences between the law of Orkney and Shetland and that of the mainland of Scotland. It is in any event plain that from an early stage the Scottish Parliament assumed the right to legislate for Orkney and Shetland as part of the Kingdom of Scotland. Moreover, by a gradual process the local judicial institutions and laws of Orkney and Shetland were, to a substantial degree, encroached upon and superseded by the judicial institutions and law of Scotland. This process was probably assisted by the fact that, as time went on, it became increasingly difficult to know or to discover what the local laws and customs of Orkney and Shetland on many subjects were. The law book, it is said, became corrupted and one legend is that it was burnt. As one would expect there was a strong tendency to fill in any gaps by importation from the law of Scotland. The foregoing processes were, however, never quite completed to this day. There are still survivals, but, in my opinion, these survivals cover a very limited field which is probably even yet diminishing. In theory it is probably still correct to say that "the whole system of law in Shetland is different from the common law of Scotland, excepting in so far as it has been assimilated by legislative enactment or gradual adoption." The quotation is from the dissenting opinion of Lord Lee in Bruce v. Smith, (1890) 17 R. 1000, at p. 1014, a case which otherwise, in my opinion, gives no positive assistance in solving any of the problems in the present case since it was concerned with altogether different issues. I venture to think that Lord Lee's dictum is only valid if one bears in mind that the exceptions far outweigh the rule in quantity and importance, including as they do almost the whole of vast chapters of the law such as contract, reparation, status and succession, to name but a few. As a practical matter, it is probably more accurate to say that the ordinary statute and municipal law of Scotland operates, except in so far as there is some specialty still extant in Orkney and Shetland which modifies it. But, whatever may be the point of view from which one approaches the question, the important point is to discover what are the survivals.

So far as I have been able, with the assistance of counsel, to discover, the survivals in Shetland are udal tenure of land, scat, scattald, and certain weights and measures. Only the first of these survivals has any bearing on the present case, and it was with the survival of udal tenure and its consequences that the cases of Smith v. Lerwick Harbour Trustees and Lord Advocate v. Balfour were concerned. The survival of udal tenure, the reasons therefore, and the main consequence thereof, are explained in a passage in Professor Menzies' Lectures on Conveyancing, (Sturrock's edition) p. 473, which I think puts the matter both accurately and simply from the point of view of a conveyancer:

"Upon the marriage of the daughter of Christian I, King of Denmark and Norway, to James III of Scotland, these islands"

(i.e., Orkney and Shetland) "were mortgaged in security of her portion, and the right of redemption having afterwards been renounced, they became the absolute property of the Scottish Crown. But it was a condition of the transfer that the owners of the soil should continue to hold their property by the same title as before. That title, however, consisted merely of natural possession, which might be proved by witnesses, and no written evidence was required. The same simple tenure still subsists with regard to those lands within the islands, of which the proprietors have not feudalised them by obtaining a charter from the Crown. They are liable to an annual impost called skat, payable to the Crown; but, while the original tenure remains unconnected with the Crown by a feudal relation, the udal lands are allodial, and not subject to feudal rules." These matters are considered in greater detail, but in the same sense, in Smith v. Lerwick Harbour Trustees and Lord Advocate v. Balfour, and I refer particularly to the opinion of Lord Kinnear in the former case at pp. 692-693, from which I would quote the following passage which was strongly founded on by the defenders in the present case:

"On the main question, I do not think it possible to doubt that the land law of Shetland is allodial and not feudal. This is in accordance with all the authorities cited to us, both before and after the case of Sir Laurence Dundas,(1777) 5 Br. Supp. 609. But if the land right is allodial, it is certain that in that system the fundamental doctrine of the feudal system as to the Crown right of property has no place. In the feudal system the King is the original lord of the land, and every right of property in land issues immediately or immediately from him. That is the theoretical basis of our whole system of land rights in Scotland. But the King or overlord has no such radical right of property in allodial land. The right of the private owner is not to hold of and under a superior. His right of property is dominium in the sense of the Roman law. The King is sovereign but he is not the universal landlord. This is certain as regards allodial land in general, and as regards land in Shetland it is stated very distinctly by Lord Jeffrey in the case of Spence v. The Earl of Zetland, (1839) 1 D. 415: ‘There is not the slightest appearance of its ever having been held that the overlord in these islands of Shetland had been the original proprietor of all the lands they contain. There is no feudal supremacy, and there is not a shadow or trace of an original property in the lord or sovereign.’ Lord Glenlee says in the same case: ‘As to the udal holding, I never heard the most distant idea that it would be considered as having anything in it of feudal right.’"

No attempt was made in argument to controvert the foregoing propositions of Lord Kinnear and any such attempt would plainly have been hopeless. It may, however, be observed that even the survival of udal tenure has been a good deal encroached upon by the feudalising of lands previously udal, a step which was no doubt often taken to obtain the security of a written title. But it is matter of concession for the purposes of the debate that the lands in the present case are udal and the observations of Lord Kinnear therefore apply without qualification.

It is at this stage that one approaches the crucial part of the argument, but it is convenient first to dispose of certain subsidiary matters. It was not, as the argument for the defenders was presented to me, disputed that the pursuer's averments were relevant to support the conclusions of the summons, at any rate on the ground of treasure, if the ordinary rules of the law of Scotland, i.e., the mainland of Scotland, are to be applied. On that assumption the defenders argued merely that there would have to be proof, perhaps of a limited character, a point with which I shall deal later in this opinion. The defenders also presented an argument in relation to the pursuer's second plea-in-law, which was designed to establish that the claim of the Crown as ultimus hœres is not a proper right of succession. This is a point on which different views have been expressed and which possibly has not yet been finally resolved in Scotland, though it has been in England. See, e.g., Craig, II, xvii, 11-12; Stair, III, iii, 47, IV, xii, 1; Bankton, III, iii, 91; Erskine, III, x, 2 and 4; Bell's Prin., (Guthrie's ed.) sec. 1669; M'Laren's Wills and Succession, I, 79-80; Dykes' Supplement, pp. 15-17; Torrie v. Munsie, (1832) 10 S. 597; Dyke v. Walford, (1846) 5 Moo. P. C. 434; Re Barnett's Trusts, [1902] 1 Ch 847;In the Estate of Maldonado deceased, [1954] P. 223. It is not strictly necessary, however, to decide this question in the present case, as the Solicitor-General conceded that proper succession is not the ground on which the claim by the Crown is presented. Indeed, both parties contended that the great weight of authority is against the theory that the claim of the Crown as ultimus hœres is one of proper succession. I understood that the pursuer's second plea-in-law was put forward simply as another aspect of the maxim quod nullius, and upon that assumption the Dean of Faculty indicated that he did not propose to present any separate argument on this plea.

One is thus brought face to face with the question whether a claim by the Crown to the twenty-nine objects which I have described can be maintained on the ground of treasure, or alternatively, on the ground of things lost, abandoned and ownerless, or bona vacantia, under the principle quod nullius est fit domini regis, it being conceded for the purposes of the argument that the objects were found in udal land, to which, borrowing the language of Lord Kinnear, the allodial land law of Shetland applies. I propose to consider first the argument of the defenders in support of their first and second pleas-in-law in relation to the claim of the Crown on the ground of treasure. I am not persuaded that this is necessarily the logical order in which to consider the Crown's claims, but it is the order in which the parties presented their arguments, possibly because the burden of authority is greater in relation to treasure than in relation to things lost, abandoned and ownerless. At this stage of their argument the defenders contended that treasure is among the regalia minora,and from this introduction they went on to contend either (1) that the regalia minora can exist only in a feudal context and, therefore, that none of the regalia minora can have any existence or application in relation to udal lands in Shetland, or alternatively, and in any event (2) that none of the regalia minora which are naturally parts and pertinents of land have any such existence or application. According to the defenders, it follows from the above argument that the Crown cannot claim as treasure objects found in udal land in Shetland although, on the same facts, such a claim might be made good if the objects were found on the mainland of Scotland. I do not pretend that the foregoing summary of this part of the defenders' argument is complete. The arguments on both sides were very extensive. But I think the summary attempted above incorporates the main points of law which the defenders sought to establish on the issue of treasure.

That the right to claim treasure is numbered among the regalia minora and can be granted by the Crown to a subject is not, I think, in doubt. For this proposition there is ample institutional and other authority—Craig, I, xvi, 40 and 45; Stair, II, iii, 60, III, iii, 27; Bankton, I, iii, 16; Bell's Prin., (Guthrie's ed.) sec. 1293. Moreover, as indeed one would expect, the early feudal writers and, in particular, Craig, seek to fit the right to treasure, together with other regalia, into the feudal pattern. I would not be disposed in such a connexion to place great weight on inferences made from the passages cited from the Regiam Majestatem and Quoniam Attachiamenta, which, in any event, appear to me to favour the pursuer's argument rather than that of the defenders': Regiam Majestatem, IV, 4; Quoniam and Attachiamenta, cap. 48, sec. 5. The defenders' argument does, however, derive some support from certain passages in the title of Craig's Jus Feudale on the subject of the patrimony of the Crown and the regalia—Craig, I, xvi, 1 seq.—though even Craig in the passages cited speaks with two voices. In dealing with the regalia he refers to a list of these rights "as known to the feudal law" which may be found in the Books of the Feus, yet he has just referred to them as rights "which the estates have recognised as appurtenant to the dignity of the Crown," which suggests the prerogative (I, xvi, 7-8). After dealing with a variety of regalia, including hidden treasure, he makes reference to "these feudal rights of the Crown" (I, xvi, 40-41). Yet, the passages relating to hidden treasure, wrecks, and waifs and strays are not suggestive of feudal rights (I, xvi, 40 and 42-43). The same comment may be made on the passages relating to the fisc (I, xvi, 46-48). As the Lord Chancellor pointed out in Lord Advocate v. Marquess of Zetland, 1920 S. C. (H. L.) 1, at p. 16, the feudal system never established a clear distinction between the King as ruler of the country and as landowner. One would not, therefore, expect the distinction to be clearly recognised in works on Scoto-Norman law and practice dating from the thirteenth and fourteenth centuries, nor in the writings of such an enthusiastic feudalist as Craig. The distinction was probably not clearly perceived even by Stair, which again is not unexpected when one bears in mind the different sources from which his genius made its selection. But, in my opinion, the great weight of the authority of Stair favours the view that although treasures found in the ground are inter regalia, in the sense of things which the law appropriates to princes and states, and exempts from private use, the right to treasure is a right belonging to the sovereign by virtue of his royal prerogative and as head of a national community rather than by virtue of his position as universal landlord—Stair, II, i, 5, III, iii, 27; cf. I, vii, 3. It may also be observed in this connexion that Stair, so far from treating the right to treasure as naturally part and pertinent of land, points out that it will not be carried by implication even in a barony title—Stair, II, iii, 60; cf. Mackenzie, Institutes, II, 6. It required no statute to achieve this result, and the rule appears to have its counterpart in England, where treasure-trove, which may be the subject of express grant as a franchise, has been ascribed to the prerogative: Attorney-General v. Trustees of British Museum, [1903] 2 Ch 598. Bankton and Erskine appear to me to give clearer support to the view that the right to treasure is a right reposing in the Crown as sovereign in his right of prerogative rather than as universal landlord—Bankton, I, iii, 14-16, I, viii, 9, II, i, 8; Erskine, II, i, 11-12, II, vi, 13. In my opinion, Bankton bases the Crown's ownership of treasure, together with other similar rights, on the broad principle of the maxim quod nullius est fit domini regis, and not on any narrow feudal rule special to the Scottish mainland. He also ascribes these rights expressly to the right of prerogative—Bankton, II, i, 18. It is interesting to find in Cleghorn and Bryce v. Baird, (1696) M. 13,522, a note, possibly by the reporter, which placed the ownership of treasure in the King for the benefit of the fisc on the same wide grounds. The authority of Erskine is also, in my opinion, against the defenders' proposition. It is, I think, of some significance that Erskine in II, i, 11-12, when dealing with the maxim quod nullius est fit domini regis, expressly mentions the feudal plan in relation to lands or rights annexed to lands, but does not do so in the case of "moveable subjects," such as treasures hid under ground, "which are presumed to have once had a proprietor, who is now unknown." This distinction is perfectly logical since, in Scotland, feudal ownership was related to lands and rights annexed to lands—cf. Erskine, II, vi, 1 and 4. On the other hand, ownership of move-ables in Scotland has from the earliest days been allodial. I have also found of some significance the passage in Erskine from II, vi, 13 to II, vi, 18. In that passage, Erskine appears to me to recognise a distinction between those regalia which are truly parts and pertinents of lands, and can, therefore, properly be described as rights in land, and other regalia, which do not fall within that category. The enumeration of regalia which are truly parts and pertinents of land, from which Erskine expressly excepts jurisdiction, ends at II, vi, 16, without any mention having been made of treasure. In II, vi, 17, Erskine turns to res publicœ, and in II, vi, 18 deals with the privileges of a barony, referring incidentally to Stair's view that even a barony does not entitle a baron eo ipso to treasures hid underground. So far from suggesting that Stair was wrong in this last view, Erskine maintains that Stair's exceptions are too limited.

I have thus reached the conclusion that the great weight of institutional authority is against the defenders even if one looks at the matter from the point of view of treasure as a separate right. The defenders do not, in my opinion, obtain any assistance from more modern authority—rather the reverse. Bell's Prin., (Guthrie's ed.) sec. 1293 deals with treasure-trove under the general head "Property in Moveables," and under the sub-head of "Occupancy" and in the same context as such matters as "Things lost" section 1291 (3), and "Waif and stray goods" section 1294. I observe that in section 1291 (3) Bell ascribes the maxim quod nullius est fit domini regis to principles of public expediency—to avoid fraud, contests and litigation together with some slight purpose of adding to the public revenue. This is Bell's reading of earlier authority and his conclusion appears to me to be far removed from the feudal theory or principle of the King as universal landlord. Rankine on Landownership, (4th ed.) pp. 248-249, reaches much the same conclusions and ascribes the Crown's ownership of treasure to the general rule that obtains in regard to all things at one time appropriated but lost beyond proof or reasonable presumption of former ownership. One may note also his observation that the right is analogous to the caduciary rights of inheritance of the Crown as ultimus hœres. There is, in my opinion, ample authority for ascribing that right to the royal prerogative and to the broad principle quod nullius as affecting bona vacantia rather than to specialised rules of the feudal law of Scotland—Stair, III, iii, 47, IV, xiii, 1; Bankton, III, iii, 91; Erskine, III, x, 1-2; M'Laren on Wills and Succession, I, p. 80, sec. 141. The King takes as sovereign authority, if not by a proper right of succession (for which neither party argued) at any rate under the general principle to which I have referred. This is so certainly in the case of moveables. In the case of lands the feudal law would have taken the estate to the immediate superior on the principle of consolidation. M'Laren observes, in the passage cited, "By our later customs, however, this right is cut off from the superior and transferred to the sovereign, who by his prerogative-royal excludes all other superiors. By the law at present, then, in default of heirs whatsoever, the king succeeds to the feu. Indeed, this right of the king is not confined to heritage only. He succeeds in the same manner to moveables. The rule, Quod nullius est, cedit Domino Regi,applies equally in both cases. The same doctrine took place in the Roman law." The same, or a similar, conclusion seems to have been reached in the law of England. See, e.g., Dyke v. Walford (supra); In re Barnett's Trusts(supra), per Kekewich, J., at p. 857. It thus appears that the principle quod nullius est fit domini regis is much older than feudalism, that it modified the feudal rules in at least one important particular since no consolidation took place under our later law unless the lands were held immediately of the King, and that it extends far beyond the narrow confines of feudal law. It is perhaps not without significance that the Norse Earldom of Orkney and Shetland included, inter alia, lands seized by the jarls as ultimi heredes, a fact which may have led to the guarded concession by counsel for the pursuer in Smith v. Lerwick Harbour Trustees, at p. 686. The defenders can hardly maintain that this was an incident of the feudal system.

In the foregoing circumstances, I have reached the conclusion that the principles of the law of Scotland relating to treasure are applicable in Shetland unless there is some surviving rule of the udal law of Shetland to prevent it. It is logical, therefore, next to consider the positive alternative suggested by the defenders, namely a right of the udaller to treasure. The first observation which I would make in this connexion is that the claim by the second-named defender to ownership of the twenty-nine objects is not supported by any plea-in-law, an omission which is surprising in view of the emphasis placed by counsel for the defenders on this positive claim during the debate. It is also apparent that the second-named defender's claim to ownership of the objects cannot be supported by reference to any surviving rule of udal law relating specifically to ownership of treasures hidden underground. The essence of this branch of the defenders' argument was that a udaller by virtue of his plenum dominium owned his land and everything in it a cœlo usque ad centrum. From this starting point the defenders went on to argue that treasure in a system of plenary ownership of land belongs to the owner of the land in which it is hidden. The defenders attempted to support this argument not only by reference to Scottish authority, in particular, Smith v. Lerwick Harbour Trustees and Lord Advocate v. Balfour, but also by reference to Roman law and to certain English decisions. The main object of the reference to Scottish authority was to demonstrate that under the system of allodial tenure prevalent in Shetland the regalia minora, or, in any event, those of the regalia minora which are naturally parts and pertinents of land, have no place, and that these rights or their equivalent belong to the udaller by virtue of his plenary ownership of the land. Smith v. Lerwick Harbour Trustees is, in my opinion, clear authority for the proposition that a udal title to foreshore will prevail against a claim to foreshore derived from the Crown on the feudal theory of the Crown's original or radical right of property therein, which is one of the regalia minora. The ratio is unassailable since foreshore is as much part of the solum of Shetland as any other land in these islands, or, in any event, from the point of view of property rights is "an accessory to the land, of which it is the continuation"—Commissioners of Woods and Forests v. Gammell, (1851) 13 D. 854, per Lord Medwyn at p. 872. If, therefore, the tenure of the foreshore is allodial, any right of the Crown to that land in the capacity of universal landlord is excluded. It might be otherwise, however, if there was no udal title to the area of foreshore in question, since in that case a feudal title from the Crown might fill the gap. For this corollary of Smith v. Lerwick Harbour Trustees there is Sheriff Court authority: Lerwick Harbour Trustees v. Moar, 1951 S. L. T. (Sh. Ct.) 46. I do not think there is anything in this view which is inconsistent with the opinions in the Inner House in Smith v. Lerwick Harbour Trustees, making full allowance for the criticisms there made of parts of the judgment of the Lord Ordinary. But, however that may be, Smith v. Lerwick Harbour Trustees is, in my opinion, a decision relating to udal land in Shetland, and it was, therefore, inevitable that the allodial land law of Shetland should be applied. The actual decision in Lord Advocate v. Balfour can, in my view, be presented as a logical extension of the decision in Smith v. Lerwick Harbour Trustees since the allodial land law of Shetland is by definition applicable to rights in lands or rights which are "truly" or "naturally" parts and pertinents of lands. That the right of salmon fishing in loch and river is naturally a part and pertinent of land would be difficult to dispute and this appears to me to be the main ground underlying the decision. While keeping the matter open, counsel for the pursuer did not, for the purposes of their argument, seek to challenge the decision in this case. It could perhaps be argued that the case was hardly one which was capable of decision on the pleadings and I must confess that for my part I find it difficult to ascribe the right of salmon fishing in the sea, as contrasted with the right of salmon fishing in lochs and rivers, to the feudal theory of the King as universal landlord. It is much easier in my opinion to ascribe this right, which is generally understood to extend to the limit of territorial waters, to the position of the King as sovereign. The idea of a right of fishing in the sea being a part and pertinent of lands on the sea coast is a strange one, though it may be that our law has by decision accepted this anomaly. It is, however, easy and perfectly logical to ascribe the right to the prerogative, despite the fact that it differs in quality from the rights exercised by the Crown as trustee for the public. It does not appear to me that the decision in Commissioners of Woods and Forests v. Gammell, (1851) 13 D. 854, (1859) 3 Macq. 419, when properly understood, precludes the latter view, but, in any event, the ratio of Lord Advocate v. Balfour involves the conception of the right of salmon fishing as naturally a part and pertinent of land but as being exercised from the land by the feudal land law of the mainland of Scotland. No doubt for this reason the Dean of Faculty in the final speech attempted to equate the Crown ownership of treasure to the Crown right of salmon fishing by contending that treasure, like salmon fishing, is one of the regalia minorawhich are naturally parts and pertinents of lands. Indeed, at one stage, the Dean of Faculty conceded that this proposition was fundamental to his argument, though it is fair to say that he did not abandon the wider contention that all the regalia which are capable of alienation by the Crown depend upon the theory of the Crown as universal landlord and cannot apply where udal law prevails. In my opinion, the wider contention to which I have just referred receives no support from the authorities relied on. I see no reason why the allodial land law of Shetland should determine the existence or non-existence in these islands of one of the regalia minora which is not truly or naturally a part and pertinent of lands. If such right derives not from the position of the King as universal landlord but from his position as sovereign there is, in my opinion, no reason why the right should not exist in Orkney and Shetland as well as on the mainland of Scotland. Indeed, the dictum of Lord Kinnear in Smith v. Lerwick Harbour Trustees, which has been quoted earlier in this opinion, asserts positively that the King is sovereign in Shetland, a proposition which at this time of day, is, in my opinion, incontrovertible. If the King is sovereign in Shetland, I consider that the rights deriving from such sovereignty exist there as well as on the mainland of Scotland. If the Lord Ordinary in Lord Advocate v. Balfour had not concluded that the right of salmon fishing was naturally a part and pertinent of land, and, as that right was developed on the mainland of Scotland, an incident of feudal land law, he would not and could not, in my opinion, have decided the case as he did.

I therefore turn to the question whether treasure can be regarded as truly and naturally a part and pertinent of the land in which it is hidden. In my opinion it cannot. It is common ground in the present case that the twenty-nine objects of which the ownership is in dispute are moveable. They are described by the pursuer in article 2 of the condescendence as "moveable objects," and by the defenders in their answer 3 as "part of the moveable wealth of an early Celtic Church." It is indeed manifest from the description given of the articles that they are moveable and I have already referred to the passage from Erskine which plainly infers that treasures hid underground are moveable subjects—Erskine, II, i, 12; cf.II, ii, 7. The present action is concerned, therefore, not with heritable rights but with the ownership of moveables. I am unable in these circumstances to understand why the ownership of these moveable articles should depend on the allodial land law of Shetland. I would expect ownership of such articles to depend on the law applicable to moveable property, and there is no indication whatever that there is any surviving specialty in Shetland in this branch of the law which would place the ownership of treasure otherwise than in the Crown. Any attempt to treat treasure as pars soli and to equate it with such things as fixtures or deposits of gold, silver or coal appears to me to be wholly unsound in principle, and, as I have already pointed out, treasures found in the ground would not be carried to a vassal by implication even in a barony title, which may itself be a consequence of their moveable character. Nor, in my opinion, is it sound to equate ownership of treasure with a separate heritable right such as the right of salmon fishing, as that right was developed on the mainland of Scotland. The right of salmon fishing is a right which is distinct and different from a right of ownership in the fish themselves—Erskine, II, i, 10. Treasure on the other hand is concerned with the ownership of moveables and in no sense constitutes or represents a right to search for treasure. The attempt made by the defenders to support their argument by supposed analogies from Roman law and the law of England was not in my opinion convincing. It was suggested that from such analogies one might be able to infer what rules relating to treasure existed in the udal law of Shetland. In my opinion, it would be strange indeed to use Roman law for such a purpose, particularly as the rules relating to thesauri inventio seem to have been subject to frequent change and to have been based, so far as ownership was concerned, on no permanent or clearly recognised principle of law which could be regarded as derived from dominium—Buckland, Roman Law, (3rd ed.) pp. 218-221; Rankine on Landownership, (4th ed.) p. 249. Any attempt to justify by reference to a general principle of law the ownership of treasure by the owner of the land in which it is found involves violence to the idea of accession, not only because treasure is moveable but also because it could not, in any event, become the property of the owner of the solum until the former owner of the treasure had disappeared from the scene—Bell's Prin., (Guthrie's ed.) secs. 1472-1473. It is not much easier to discover any general principle whereby ownership of treasure should have gone to the finder particularly in view of the insistence in Roman law that the finding should be accidental. On the other hand, once the development of a national community has taken place, ownership of treasure by the fisc can be based on a perfectly clear general principle, namely quod nullius est fit domini regis. I also find it impossible to infer from English authority that there was a specialty in the laws and customs of Orkney and Shetland which conferred ownership of treasure on the udaller. The English decisions cited do not appear to me to enshrine any universal or even general principle of law. Elwes v. Brigg Gas Company, (1886) 33 Ch D 562, which was much founded on by the defenders, was an action between lessor and lessee to which the Crown was not a party and is a decision by a single judge in what appears to have been a possessory action. All that was decided was that the prehistoric boat did not pass to the lessees by the demise which was merely a contract for the possession and profits of the land. South Staffordshire Water Company v. Sharman, [1896] 2 Q B 44, was a possessory action to which again the Crown was not a party. I cannot elicit anything from either of these decisions which assists in the solution of the problem as to what rule, if any, relating to treasure existed in the udal law of Shetland.

I have reached the conclusion accordingly that the ordinary law of Scotland relating to treasure falls to be applied in the present case. In order to qualify as treasure, articles must be precious; they must be hidden in the ground; and there must be no proof of their property or reasonable presumption of their former ownership. Although it was faintly argued at one stage that only money or articles of gold or silver could qualify as treasure I am of opinion that treasure is wide enough in scope to include many other precious things, and in particular such articles as are described in the present case—see, e.g., Bankton, I, viii, 9. The requirement that treasure be hidden in the ground is ancient, though hiding in the fabric of a house or other building will apparently be sufficient—Cleghorn and Bryce v. Baird; Gentle v. Smith, 26th January 1788; Hume's MS; 1 Bell's Ill., p. 375. Although there are a number of admitted facts in the present case from which the inference of hiding might be made, admission on the point of hiding is, as I have said, withheld by the first-named defender. In the circumstances, counsel for the pursuer came near conceding that, so far as the action is laid on the ground of treasure, there would have to be inquiry into the question whether the articles were hidden, and I think it would be going too far to make the inference of hiding from the pleadings. It was also argued by the defenders that they were at least entitled to inquiry on the question of reasonable presumption of former ownership. On this last point I have reached the conclusion that the defenders' argument is unsound. It is not, in my opinion, enough to offer to prove that many centuries ago the articles were the property of an unnamed Celtic Church which flourished on the site. It must, in my opinion, be possible to connect the reasonable presumption of former ownership with someone entitled to the property at the present day. Thesaurus est vetus quœdam depositio pecuniœce, cuius non extat memoria, utiam dominum non habeat. So runs the text of the Civil law. The requirement is that the articles should be ownerless now and the requirement that the reasonable presumption of former ownership should be traced to some person or family now existing receives further support from the passage in More's notes to Stair, I, at p. cxlvi, to which reference was made—cf. Buckland, Roman Law, (3rd ed.) p. 218. It is, in my opinion, clear from the pleadings in the present case that there is no reasonable presumption of former ownership in that sense, and the defences are significantly silent on the question of who is said to be the present owner of the articles. In argument, so far from suggesting that the owner was some successor of the Celtic Church referred to in the defences, the defenders maintained, as I have pointed out, that the owner is the second-named defender as udaller. On the question of treasure, therefore, I consider that the pursuer has a title to sue and also that his pleadings are relevant. I do not feel able, however, to grant decree de plano on this ground, since, as I have indicated, there would, in my opinion, have to be proof, so far as concerns the pursuer's third plea-in-law, on the limited question whether the objects were hidden in the ground.

Much of what I have said on the question of treasure applies also to the alternative ground of things lost, abandoned and ownerless, or bona vacantia, upon which the pursuer's case is presented. The law on this alternative ground is only slightly illustrated by decision, no doubt because things lost, if they were not precious, were of little interest to the Crown and because in modern times it has been found convenient as a practical matter to deal with lost property under the relevant police statutes. The law as to things lost is, in my opinion, accurately stated in Bell's Prin., (Guthrie's ed.) sec. 1291 (3), to which I have already referred but which it is convenient to quote here:

"Things already appropriated, but lost, forgotten, or abandoned, fall under a different rule from that which regulates things that have never been appropriated. The rule is, ‘Quod nullius estfit domini regis.’ The principle on which this rests is public expediency—to avoid fraud, contests, and litigation, together with some slight purpose of adding to the public revenue"

—cf. Bankton, I, iii, 16. The foregoing rule, which apparently differs from that which prevails in England, and in particular the requirement of proof of abandonment of the articles by the former owner, is illustrated by Sands v. Bell and Balfour, 22nd May 1810, F. C., I Bell's Ill., p. 375. In many cases proof of abandonment or dereliction must, of course, depend on inference rather than direct evidence, particularly where no memory of the things lost has been extant for many centuries. I cannot find in the law relating to things lost, as stated in thefore going passage by Bell, any trace of the conception that the right of the Crown to things lost is one reposing in the King in his capacity as universal landlord. It is no doubt in a sense curious that the law as to things lost should be less emphasised in the institutional writers than that of treasure and that the incidents of the two rights should in some respects differ. No doubt this was because treasure tended to have much greater attractions for the Crown and was considered a right which might appropriately be granted to a subject. But despite these differences I consider that the right of the Crown to things lost is based, like treasure, upon the broad principle quod nullius est fit domini regis, and that the attempt by the defenders to argue that that principle is itself nothing more than an incident of feudalism is without any sound foundation. In my opinion, the origins of the principle are to be found in quite a different quarter, namely, in the capacity of the King as sovereign and head of a national community. The principle was a wide one and it embraced many things besides lost and derelict property and treasure. To some of these reference has already been made. My reading of the institutional writers leaves me with the strong impression that such rights as treasure, waif and stray goods, and wreck are, or were, like things lost and derelict, and for that matter the Crown right as ultimus hœres, illustrations of a general principle which, in its relation to moveable property, is in no sense an incident of feudal law and which, in relation to heritage, in at least one respect modified the strict feudal rule almost out of recognition—Stair, I, vii, 3, II, i, 5, III, iii, 27, III, iii, 47; Bankton, I, iii, 14-16, I, viii, 2 to 9, II, i, 8, III, iii, 91; Erskine, II, i, 12-13, II, ii, 7, III, x, 2; cf. Rankine on Landownership, (4th ed.) pp. 248-250; Cleghorn and Bryce v. Baird . In the list of Crown rights given by Craig, I, xvi, 7, seq., there are a number which, in my opinion, cannot on any view be described as mere incidents of the feudal system or of the position or capacity of the King as universal landlord. Of these derelict property is, in my view, one very obvious example, particularly as it is clear that in this connexion Craig is referring to moveable estate—I, xvi, 30. In any event, if the Crown right to things lost, abandoned and ownerless falls to be regarded as a separate right of the Crown, the pursuer's alternative case is, in my opinion, upon authority a fortiori of the case on the ground of treasure, since the attempt to describe the right as a mere incident of the feudal system lacks even the plausibility which, in the case of treasure, is afforded by the inability of some earlier writers to distinguish clearly between the King in his capacity as sovereign and in that of universal landlord.

For the foregoing reasons I am satisfied that there is nothing to prevent the law of Scotland in relation to things lost, as stated by Bell, having application in Shetland, and there is, in my opinion, not the slightest indication that any special rule upon that subject has ever prevailed in these islands. In this latter connexion it is unnecessary for me to repeat what I have already said on the positive argument in support of ownership of treasure by the udaller. What I have already said applies, probably a fortiori, to things lost. The idea that plenary ownership of land carries with it everything acœlo usque ad centrum, including even all moveable articles in or on the land, is, in my opinion, fallacious, and was certainly not supported by any convincing authority. The further idea that moveable articles hidden in or abandoned on land are naturally or truly parts and pertinents of the land appears to me to be equally unsound in principle.

If, as I hold, the ordinary rules of the law of Scotland relating to things lost apply to Shetland, I am of opinion not only that the pursuer has averred a relevant case and title to sue on this ground but also that the defences are irrelevant. There is, in my opinion, sufficient in the pleadings to show that the twenty-nine objects in dispute were things already appropriated but lost, forgotten and abandoned in the sense of the passage which I have quoted from Bell's Principles.

In these circumstances, I shall repel the defenders' pleas-in-law, sustain the pursuer's first and fifth pleas-in-law and grant decree de plano in terms of the first and second conclusions of the summons, I shall reserve the question of expenses.

The defenders reclaimed and the reclaiming motion was heard before the Second Division (with Lord Guthrie) on 25th, 26th, 27th and 28th June 1963.