OUTER HOUSE, COURT OF SESSION
[2010] CSOH 70
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P1124/08
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OPINION OF LORD UIST
in the Petition of
THE CROWN ESTATE COMMISSIONERS
for
Declarator
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Petitioners: R. N. Thomson QC; Anderson Strathern
Amicus Curiae: McBrearty; Scottish Executive Legal Directorate
4 June 2010
[1] Kames Bay lies between Port Bannatyne and Ardmaleish on the east coast of the Isle of Bute, about two miles north of Rothesay. For many years boat owners have moored their vessels to the seabed there without paying for a licence. The petitioners are the Crown Estate Commissioners, acting on behalf of the Crown under the Crown Estate Act 1961. They seek declarator that:
(a) they are entitled to remove all unlicensed mooring equipment within Kames Bay lying to the east of the mean low water springs and to the west of the line drawn across the mouth of the Bay on the map annexed to the petition, together with warrant to appointed persons to remove the mooring equipment in the event that it remains upon the seabed by the date of any grant of prayer pronounced in these proceedings; and
(b) they are entitled either
(i) to store the mooring equipment so far as unclaimed by any owners in a safe and secure place for a period of two months or such other period as the court may consider appropriate and that following expiry of that period they or such person or persons as the court may appoint may dispose of or destroy the mooring equipment without liability to any alleged owner or possessor thereof; or
(ii) to report the recovery of the mooring equipment as lost property further to the provisions of the Civic Government (Scotland) Act 1982.
[2] On 27 May 2008 the court appointed the petition to be intimated on the Walls in common form and to be advertised in the Buteman and Herald newspapers and allowed any person claiming an interest in the subject matter of the petition if so advised to lodge answers within 56 days of such intimation. No answers were lodged. On 31 July 2008 Brodies LLP, Solicitors, wrote to the Deputy Principal Clerk of Session stating that they were instructed by Mr Harry Ellis of Port Bannatyne, a member of St Brendan's Cruising Club in Rothesay and the owner of one of the moorings in Kames Bay, who believed that the petition raised important questions of law. They went on to state that neither Mr Ellis nor any of the other individuals or associations affected by the petition had the resources to fund the preparation of formal answers to the petition or to become a party to the process, given the legal costs and potential exposure to an adverse award of expenses which that would entail. Brodies respectfully submitted that it might be appropriate, in the absence of a contradictor to the petition, for the court to appoint an amicus curiae to consider the points of law which arose and address the court on them. They transmitted the views of Mr Ellis in the following terms:
"Mr Ellis is of the view that the Crown Estate Commissioners have no rights in relation to the seabed in Kames Bay due to the terms of the Charter of the Royal Burgh of Rothesay granted by King Robert III of Scotland and the Charter of Confirmation and Novodamus in favour of the Burgh of Rothesay granted by King James VI of Scotland in 1584. ...
Mr Ellis believes that the Crown has by these charters divested itself of any right over the seabed adjacent to Rothesay (and so in Kames Bay), such rights having passed to the burghers of Rothesay and, accordingly, to their present successors, Argyll and Bute Council. It is therefore Argyll and Bute Council, rather than the Crown, which would have the right to remove such moorings or to impose fees for mooring in the bay. ...
For the avoidance of doubt, Mr Ellis disputes the contention in paragraph 4 of the petition that a condition of attaching any mooring to the seabed is that consent be obtained from the Scottish Government under section 34 of the Coast Protection Act 1949. The terms of that section state that such consent is required only if the construction of any works or the depositing of any object on the seabed causes, or is likely to result in, obstruction or danger to navigation. Mr Ellis does not believe that his own mooring is capable of constituting such an obstruction or danger, and is therefore of the view that section 34 does not apply.
We do not understand the petition to be contingent upon the application of section 34 to the relevant moorings, but if that is in fact the case we would respectfully submit that the petitioners should be required to establish that the said moorings would, or would be likely to, cause obstruction or danger to navigation - at present the petitioners simply assert at paragraph 12 of the petition that 'the mooring equipment may represent a potential hazard to others sailing in Kames Bay.'"
[3] On 17 November 2008 the petitioners enrolled a motion in the following terms:
"In respect of the letter by Messrs Brodies LLP dated 31 July 2008 to the DPCS on behalf of Mr Harry Ellis, Port Bannatyne, Isle of Bute, for guidance from the court as to further procedure, and in particular whether an amicus curiae is to be appointed."
I heard counsel for the petitioners on that motion on 19 November 2008 and, having considered the letter of 31 July 2008 from Brodies LLP, I held that in the absence of a contradictor, and in order that the court might receive assistance on the issues which it had to decide, the nomination of an amicus curiae in the proceedings was desirable. I therefore continued the proceedings in order that a letter of request for the appointment of an amicus curiae be sent to the Lord Advocate and a response thereto received. The Lord Advocate having subsequently nominated Mr Kenneth McBrearty, Advocate, on 16 December 2008 I appointed him to act as amicus curiae in the proceedings and authorised the clerk of court to make available to him all available parts of process to enable him to consider his position.
[4] The amicus curiae subsequently lodged a Note (7/1 of process) and Supplementary Note (7/2 of Process) which set out what he considered to be issues raised by the petition. These were:
(i) that there were two Royal Charters, dated 1400 and 1584, in existence which, it might be argued, had alienated the Crown's rights, so that there was no entitlement to the remedy sought;
(ii) whether the wording relating to the nature of the grant was, in principle, adequate to transfer a right of property in the seabed;
(iii) whether the description of the area in question was sufficiently specific as to be capable of clear and absolute identification, so that it amounted to a valid description at common law;
(iv) if the description is considered insufficiently specific, but the grant is considered an ex facie grant of title, whether the extent of the grant is open to clarification by reference to extrinsic evidence of possession, which may found the operation of positive prescription so as to fix the extent of the title;
(v) if the right granted under the 1584 Charter was not one of property in the seabed, then whether the grant to "the magistrates and inhabitants" of "a free port and harbour" is apt to include the right to a harbour within the area defined in the Charter so that the petitioners had no right to regulate, or charge in respect of, moorings in an area where a harbour has been established;
(vi) if the description of the grant of harbour was not sufficiently specific to be valid at common law, whether the extent to free harbour and port at Kames Bay requires to be fixed by relevant evidence of possession;
(vii) if so, whether the evidence of possession supports the proposition that the area at Kames Bay has been used for the mooring of boats since, at the latest, the late eighteenth century, and that a quay was built for that purpose at around that time, so that the grant under the 1584 Charter (whether one of property or merely of free port and harbour) has been fixed in that area as a result of positive prescription;
(viii) and, if the petitioners were to argue that such a right was lost by the operation of negative prescription as a result of no exercise of the right between 1584 and the late eighteenth century, whether
a. the right granted is imprescriptable, either on the basis that it is a real right in land (if the right is one of property in the seabed) or on the basis that it is a right exercisable as a res merae facultatis (if the right is one of free port and harbour; and
b. where there is no certainty whether or not the right was exercised during the period from 1584 until the end of the eighteenth century, whether the onus falls upon the Crown, having made the original grant, to establish that the right granted has been extinguished by negative prescription, failing which the grant, as fortified by relevant possession, would remain.
[5] The position of the petitioners was that there was no basis on fact or in law for a right of property held by the populace of Bute or Rothesay in the seabed seaward of the foreshore or a right incidental to a right of free port and harbour. Furthermore, there existed no other basis for any right to lay permanent moorings held by the local population. A hearing on the petition and the notes for the amicus curiae, at which I heard both evidence and legal submissions, took place over a period of five days.
The Royal Charters
[6] King Robert III established Rothesay as royal burgh on 12 January 1400. The charter constituting the Burgh is written in Latin. According to the English translation provided it reads as follows:
"ROBERT, by the grace of God King of Scots, to all honest men of his whole land, cleric and lay, greeting. Know ye that we have given, granted and for ourselves and our successors for ever confirmed to our beloved and faithful men of our town of Rothesay that they and their successors henceforth may be our free burgesses, and that they and their successors for ever may have, hold and possess the said town henceforth as a free royal burgh from us and our heirs for ever by all the right, ancient, measured boundaries of the burgh, with all the privileges, liberties, conveniences, easements and just pertinents whatsoever belonging or worthy in future in any manner justly to belong to a free royal burgh as freely, quietly, fully, wholly, honourably, well and in peace, in and by all things, as any burgh within our kingdom is by us or any of our predecessors, Kings of Scotland, more freely granted or given to any burgesses by the King's service owed and accustomed from a royal burgh. Strictly forbidding any extraneous merchant or such person whatsoever to buy or sell or use merchandise of any kind, contrary to the liberties and privileges of our said burgesses, within its ancient bounds and limits, under every punishment which ought to follow thereupon according to the laws of our kingdom."
[7] On 19 February 1584 King James VI granted a Charter of Confirmation and Novodamus in favour of the Burgh of Rothesay which approved, ratified and perpetually confirmed the charter of 1400 and of new made, constituted, erected and confirmed the burgh of Rothesay a free royal burgh with privilege and liberty of territory within specified limits. It contained the following relevant provisions:
"Moreover, for us and our successors, according to the tenor of our present charter, we give and grant to the magistrates and inhabitants of the said burgh, present and to come, a free port and harbour for ships in the bay and station of the said port of Rothesay and Kyles of Bute, the stations of Cumbray, Fairly and Holy Isle, and all others within the foresaid bounds, with free entrance and exit for ships and boats, for carrying burdens with all kinds of goods and merchandise not prohibited by our laws and acts, with all privileges and liberties of a free port.
With power to the magistrates, councillors and community of the said burgh, present and to come, to rent, grant and feu all the lands within the foresaid bounds and liberties of the same to the inhabitants.
And generally all and every privilege, liberty and advantage pertaining to a free burgh, free fairs, market day, a port and receptacle for ships, to be used and exercised as freely as any other magistrate or officers holding the same privileges use within our Kingdom in times past or to come. To hold and have all and whole the said burgh of Rothesay, and the limits and liberties of the same by land and sea, as is above specified, with the liberties, privileges, advantages, immunities and others specially and generally above mentioned, to the said Provost, bailies, councillors and community, and the successors of us and our successors in feu and heritage, as a free royal burgh for ever ..."
[8] The petitioners aver that the Crown is the owner of the seabed within territorial limits, which is part of the regalia minora. In, particular it owns the seabed at Kames Bay below the mean low water springs and to the west of the line drawn across the bay on the map annexed to the petition. Under the Crown Estates Act 1961 the petitioners are charged with the responsibility of managing the seabed on behalf of the Crown. No persons have the right to place moorings on the property of the Crown without consent. The public right of navigation extends only to a right to anchor transiently. The moorings in question are permanent or semi-permanent in nature and the consent of the petitioners is required to attach them to the seabed at Kames Bay. Arrangements have been made for the petitioners' consent to be sought either by application to their agents, Bidwells, or by application to the relevant mooring association, Port Bannatyne Moorings Association (PBMA). The licence fee for a mooring is currently г70 per annum if obtained directly from the petitioners through their agents or г35 per annum if obtained through PBMA. A mooring permission granted by the petitioners through their agents is regulated by an individual mooring licence entered into between the petitioners and the licensee. If the mooring is regulated by the PBMA the agreement is between the PBMA and the licensee.
[9] A condition of attaching any mooring to the seabed is that the consent of the Scottish Ministers be obtained under section 34 of the Coast Protection Act 1949 ("section 34 consent"). That section, which deals with the restriction of works detrimental to navigation, provides, so far as relevant:
"(1)... no person shall without the consent in writing of the Scottish Ministers carry out any of the following operations, that is to say, -
(a) construct, alter or improve any works on, under or over any part of the seashore lying below the level of mean high water springs,
(b) deposit any object or other materials on any such part of the seashore as aforesaid, or
(c) remove any object or any materials from any part of the seashore lying below the level of mean low water springs,
if the operation (while being carried out or subsequently) causes or is likely to result in obstruction or danger to navigation."
In their consideration of an application for section 34 consent the Scottish Ministers have regard to issues of public safety and of controlling navigation rights and navigation channels.
[10] In or about 2005 and 2006 the petitioners engaged in discussions with certain members of the local community about moorings at Kames Bay. As a result of an open public meeting on 11 July 2005 the PBMA was formally constituted at a further public meeting on 16 January 2006. On or about 6 February 2006 agreement was reached between the petitioners and the PBMA on the moorings area in Kames Bay and the number of moorings to be located there. On 1 December 2006 section 34 consent was received by the PBMA for up to 100 moorings within an area defined by four specified geographical points.
[11] On or about 8 March 2007 the petitioners granted the PBMA a licence for the use of an area of the seabed at Kames Bay for moorings corresponding to the section 34 consent. A further meeting was held on 23 April 2007. The licence was signed by the PBMA and returned to the petitioners on 1 May 2007. The completed licence was sent to the PBMA on 14 May 2007 along with mooring tags for issue to their members. An authorised mooring (granted either by the petitioners through their agents or by the PBMA) is placed in a position authorised by the section 34 consent and is marked by a tag attached to the surface buoy. As at 21 May 2008 a total of 67 mooring tags had been issued, of which 59 had been allocated to members of the PBMA.
[12] Some of the moorings within Kames Bay remain unlicensed. On or about 4 September 2007 Bidwells carried out a site inspection there and noted the moorings which did not have mooring tags attached. A notice was attached to each such mooring to inform its owner of the requirement to contact the petitioners' managing agent to have the mooring regulated. On or about 10 January 2008 the petitioners wrote to the Chief Executive of Argyll and Bute Council, the local members of Parliament and of the Scottish Parliament and two local councillors advising that they were seeking regulation of the moorings. On or about 14 January 2008 they wrote to the PBMA and to the captain of the local sailing club, St Brendan's Cruising Club ("the club") advising that they were aware that some moorings within Kames Bay remained unregulated and requesting the assistance of the PBMA and the club in identifying the owners of the unregulated moorings. On or about 18 January 2008 notices were placed in the Buteman newspaper and sent to the post offices at Port Bannatyne and Rothesay for public display. These notices advised anyone owning an unregulated mooring in the moorings area that they must contact the PBMA or Bidwells in order to enter into a mooring licence and further warned that any unregulated moorings within Kames Bay were to be removed by 28 February 2008 and that failure by the owner of an unregulated mooring to enter into a licence or remove the mooring would result in the petitioners seeking a court order for removal of the moorings. On or about 6 March 2008 a letter was sent to the same persons as the previous letters explaining that the period for obtaining licences or removing moorings had expired and that a number of moorings remained unregulated. It further stated that the petitioners would now be re-surveying the area and raising legal proceedings in respect of those moorings which had been neither licensed nor removed.
[13] On or about 14 March 2008 a further site inspection was carried out by Bidwells, who noted a number of unlicensed moorings remaining within Kames Bay. Any owners of the mooring equipment have no right or title to leave it on the seabed without the consent and regulation of the petitioners. The mooring equipment may represent a potential hazard to others sailing in Kames Bay. Although it is permanent in nature, it is corporeal moveable property which has been left resting on the heritable property of the Crown. Many of the moorings have the appearance of having been left in position for a substantial period of time, of the order of years. The petitioners cannot know what its status is in the absence of information from any putative owners. As the petitioners have attempted but failed to trace the owners the property is in effect either lost property or abandoned property. If it has been abandoned then it belongs to the Crown: nullius est fit domini regis. As the Crown owns the seabed and unlicensed moorings have been placed or abandoned on it without consent, the petitioners now wish to remove the equipment and treat it as lost property, in due course disposing of it if unclaimed. It is therefore appropriate that declarator should be granted in the terms sought.
[14] I heard, by way of background to the legal submissions, evidence from eleven witnesses. The first seven were called by the petitioners and the remaining four by the amicus curiae. No questions of credibility or reliability of factual evidence arose. I turn to deal with the salient points in the evidence of each of these witnesses.
(i) Dr Susan Rose
[15] Dr Rose (71), from London, is a writer and lecturer and was formerly senior lecturer at Roehampton Institute (now University) in Medieval History from 1991 to 2006. She is also an associate lecturer at the Open University. She specialises in maritime and naval history. Her doctorate was on William Soper, Clerk to Henry V. It was clear from the way in which she gave her evidence that she was an excellent lecturer, able to convey her subject as one of absorbing interest. She has published several books and numerous academic papers. She is the author of the first chapter of the Oxford History of the Royal Navy, she edited the medieval section of British Naval Documents, contributed an article to Naval Miscellany VI, and edited Naval Miscellany VII and the volume of papers entitled Medieval Ships and Warfare. She wrote the article entitled "Anchoring and Mooring: An Examination of English Maritime Practice before c1650" in The Mariner's Mirror Vol 89 No2 (May 2003) 151-166 (6/55 of process) as she had been approached by the Crown Estate Commissioners in London and asked to research the subject. She was quite surprised by her conclusions. She was recently asked to consider the Scottish position. She is a sailor herself and knows the Western Isles very well. She followed the same method as she had done for England, namely, to find (1) any documents about mooring per se; (2) any local documents about the position in particular areas; and (3) dictionaries relating to the older Scottish tongue.
[16] The term "mooring" and its various extensions, such as "swinging mooring", related to a mooring fixed to the sea bed and attached to a buoy. In the earlier period it meant anchoring (using the boat's own ground tackle to attach it to the seabed) or tying the vessel to the shore (a quay or a pier or a river bank or, very occasionally, a mooring post in the seabed or river bed). She had never come across an instance of mooring to post on the foreshore, except perhaps a rowing boat in a fishing lake. Her conclusion was that the modern type of mooring was unknown before the eighteenth century. There were several reasons of this. First, the need for swinging moorings arose from very crowded anchorages. The first mention of swinging moorings was in relation to the Royal Naval Bases at Portsmouth, Rosyth, Portland and Plymouth in connection with naval activities in the wars against France in the eighteenth century, particularly from 1793-1815, when the Royal Navy expanded exponentially and these anchorages were very crowded. Secondly, if the sort of ground tackle used in a swinging mooring is going to hold a ship of any size, particularly in adverse weather conditions, it has to be extremely secure. No such ground tackle (that is, a very large, very heavy single fluke anchor secured by an iron chain) existed until the expansion and development of the iron industry in the eighteenth century. Before then anchors consisted of two flukes. Thirdly, there was the question of trust of the mooring by the master of the vessel when he was not very sure of it. The skipper of the yacht which she sails on the Western Isles does not use any visitor moorings as he does not trust them for the yacht.
[17] Wooden ships required continual maintenance, whether or not afloat. There was no particular advantage in keeping them afloat. Royal medieval ships, if not required in service, were normally laid up in mud berths, such as Ratcliffe near Limehouse on the Thames and the Hamble River off Southampton water. To some extent there was a disincentive to keeping a wooden vessel in the water if it was not in use: this applied even more to small commercial vessels, which were easy to pull up onto the shore (something that was very frequently done). Many such vessels might have been tied to a quay adjacent to the harbour facilities.
[18] One problem about the early fifteenth and sixteenth centuries was that there were very, very few records which might contain the relevant information. In relation to English ports, there were references only to tying up to the quay or anchoring. Mooring posts were used extensively in Venice. Assenale had shipways and galley sheds, but no moorings. If heavy ground tackle were available and there was a need for extra space in an anchorage, swinging moorings would be a normal development.
[19] In sixteenth century Scotland maritime activity was much more developed on the east coast than it was on the west coast because of the direction of Scottish trade. The west coast, until trade with America began, traded only with Ireland, and, to a lesser extent, the Northern English ports. Liverpool was undeveloped: Chester was the port. Atlantic trade stimulated the western ports, particularly Glasgow. Before that fishing was the main activity at the west coast ports. The evidence of ship types on the west coast of Scotland in the sixteenth century was pretty scanty. A birlinn was a smaller type of Viking ship. The Lord of the Isles could summon a very considerable fleet of birlinns. There was no direct evidence of what was done with them, but her deduction from the type of vessel, the coast and the weather was that they were very likely to have been brought up on the foreshore out of harm's way. If a pier was available they would be tied to the pier and an anchor or several anchors used.
[20] In the course of her research on the word mooring Dr Rose consulted the Dictionary of the Older Scottish Tongue and the Scottish Etymological Dictionary, which contained no reference to mooring, only to anchor. In four English dictionaries which she consulted the meaning of the word mooring changed at the end of the eighteenth century from merely tying up a boat to what is now thought of as a swinging mooring. The transition in meaning clearly occurred at that time. If there is no boat attached to it, the buoy will swing with the tide, whereas if a boat is attached, it will swing right round.
[21] The type of equipment on the seabed depended on who put the mooring down. Some private moorings were attached to anything heavy. The design of modern moorings was outwith her speciality. She imagined that it would be highly desirable to have more than one contact point. With a small yacht it might be a rope (hemp in former times), with a ship it might be chain. As the size of ships increased longer and longer anchor cables were used and it became quite difficult to store them on the ship. Naval ships might use chains. She thought rope might be problem because of rot and marine organisms.
[22] In the medieval period buoys were small, light objects made of cork or wood, not the large, heavy objects of nowadays. The existing visitors' moorings in Tobermory were quite large and made of heavy metal. There was no need for a substantial buoy in the medieval period because there were no permanent moorings then.
[23] The evidence of maritime practice in the medieval period was that most of the King's ships, if not at sea, were usually anchored off port or on a river with shipkeepers on board who looked after them. They were always anchored on their own anchors. There was nothing at all to indicate permanent moorings for merchant shipping.
[24] In cross-examination Dr Rose pointed out that the idea that it was fun to go to sea (leisure boating) did not exist before the nineteenth century. Having a boat on a mooring was something of a nuisance as you had to have some other boat to get out to it: if you were engaged in trade or fishing you wanted to be tied up to the harbour. The port books indicated that in some cases it took five weeks to unload cargo. Smaller boats tended to be "rafted up" to the quay. In a small bay of an island off the west coast of Scotland you would take your boat up onto the shore: she thought that, taking account of the weather, you would not want to risk your major investment. Stones with ropes attached went back to the Iron Age and were known as sinkers. They were certainly a form of anchor and she thought it most unlikely that they were permanent moorings. An anchor was an instrument of navigation: a mooring was a permanent fixture. A boat with a home port would be likely to anchor in the same place. A mooring was essentially a parking place for your boat. In a tidal harbour you had to allow space for swings when the tide changed, but with a permanent mooring you could measure the space required. A commercial port would have a quay before it had permanent moorings. Rothesay did not have pier for a considerable period of time. The advantages of a quay and harbour were obvious. She had not looked in the Scottish dictionaries for the meaning of the word "station" in the maritime context, but from its Latin root she would expect it to mean a place of anchorage.
[25] In re-examination Dr Rose stated that, as far as she was aware, no sinkers had been found on the west coast of Scotland, but that did not mean that there were none there. They were usually found in the Mediterranean. Considering the coastline and weather of the west coast of Scotland, it was more likely that you would pull your vessel up onto the foreshore (a birlinn had no lifting gear) than use a sinker, which was more trouble than it was worth. Whether a hamlet or village did not exist until the eighteenth century was irrelevant to her basic proposition. In the absence of any kind of settlement, the obvious thing for a fisherman to do would be to use his anchor. The whole thing about a permanent mooring was that it was your home: it was where you returned to.
(ii) Ian MacLagan
[26] Mr MacLagan (67) is a retired solicitor, Clerk to the Presbytery of Argyll and also an amateur local historian. He practised as a solicitor in Bute from about 1965 until his retirement in 2003. He had a general country practice in Rothesay which included some clients who lived off the island. He is the author of the book "The Piers and Ferries of Bute" (6/44 of process), published by the Buteshire Natural History Society in 1997. He adopted as his evidence his affidavit dated 20 October 2009 (6/67 of process).
[27] The substance of Mr MacLaren's evidence on the principal issues which arise in these proceedings is contained in paras 2, 3 and 14 of his affidavit:
"2 I have some initial observations on why I think Rothesay's Charter of Confirmation was framed as it was. Prior to 1385 the islands of Arran and Bute were part of the Sheriffdom of Kintyre. In 1385 they were disjoined from Kintyre and the Sheriffdom of Bute (comprising the islands of Bute, Arran, the Cumbraes and their outliers) was established by King Robert II. In 1400/01 Rothesay was erected as a Royal Burgh and in 1584 the town was granted a charter of Confirmation. At that time Rothesay was the only burgh in the Sheriffdom of Bute. The only other burgh in the County was Millport on Cumbrae, which was erected as a police burgh in 1864. One might wonder why any jurisdiction of Rothesay extended beyond Rothesay Bay to the Kyles of Bute, and the roads of Cumbrae, Fairlie and Holy Isle as specified in the Charter of Confirmation. Given that the prevailing winds in this part of Scotland are from the south westerly quadrant of the compass and that the Firth of Clyde is exposed to south westerly gales it appears to me that the sea areas mentioned in the Charter are in the most sheltered areas of water within the Sheriffdom of Bute. The island of Bute itself provides shelter for Rothesay Bay and the Kyles; the Cumbraes provide shelter for Cumbrae and Fairlie Roads and Arran and Holy Isle provide shelter for Lamlash Bay (the roads of Holy Isle). These are the most sheltered anchorages in the Sheriffdom of Bute and in my opinion that is probably why Rothesay was granted rights over these areas of water. In my opinion the rights granted to Rothesay were confined to the named areas and not to the areas of open sea within the sheriffdom.
3 In my opinion the Charter of 1584 did not grant any rights to the bed of the sea and the Burgh of Rothesay did not, and its present successor council does not, own the seabed. I am of the opinion that the seabed was retained by the Crown and is still owned by it. If I am correct, that raises the question of what rights were granted to the Burgh of Rothesay. In my opinion Rothesay was granted the right of 'free port', which, although exercised by the Burgh in relation to Rothesay Harbour, was never, in so far as I am aware, exercised in relation to the sea areas adjacent to Arran and the Cumbraes. I suspect that the boat owners who are challenging the Crown's right to dues may be ascribing too literal a meaning to the word 'free' and giving the word a construction it does not warrant. I use as an analogy the description 'free house' as applied to licensed premises. This does not mean a house where the beer is free, but, rather, a place where the licensee is not tied or thirled to a particular brewery. In the expression 'free port' I understand the adjective 'free' to mean that any boat owner is free to make use of the port or harbour on paying the appropriate harbour dues. This interpretation is borne out by the fact that in 1830 the owner of three steamboats successfully obtained an interdict in the Court of Session against threatened refusal of admission to Rothesay Harbour. The dispute resulted in the Burgh having to petition Parliament to establish a Harbour trust with powers to levy increased dues.
14 Although the magistrates and councillors in 1584 probably knew exactly what rights they were getting with the right of port and harbour I am unable to be precise in that I did not research this aspect of the Charter. I understand that one of the privileges enjoyed by royal burghs was that imported and exported goods required to pass through a royal burgh and accordingly import and export dues were an important source of revenue. A right of free port and harbour meant that a royal burgh could exact both import and export duties and harbour dues. It is hard to say why Rothesay was important enough to justify being erected as a royal burgh. It may have been because Rothesay Castle was a royal residence and the King wanted the town to have royal burghal status so that no hindrances were placed on the supply of goods and to make sure that his needs were met. In passing it is interesting to note that Rothesay's Charter of Erection in 1400/01 is the first one that refers to a royal burgh. Earlier charters simply granted burghal status without actually calling the burghs Royal Burghs."
[28] In paras 4, 5 and 6 of his supplementary affidavit he stated:
"4. Port Bannatyne was no more than a hamlet prior to the end of the 18th century and only developed into a village when the then landowner started feuing land for building at the turn of the century. White's Charter was the basis on which Port Bannatyne was to be developed. In White's Charter there are provisions for the maintenance and administration of the quay at Kames Bay. There is no evidence that a quay existed prior to 1796/97. In some ways it is irrelevant what year the quay was built as we at least know the decade. In my book I have quoted from an extract of White's Charter.
5. Kames Bay's use as an anchorage must have increased significantly with the development of Port Bannatyne. The extent to which Kames Bay was used for anchoring prior to the development of Port Bannatyne is impossible to determine. Given the size of boats in the 18th and 19th centuries and the difficulty in laying permanent moorings I think that it is more likely that the boats were anchored or dragged on to the beach rather than moored at permanent moorings. I am unable to state exactly when anchoring started to be superseded by moorings and when boat owners started mooring their boats instead of anchoring them. I have photographic evidence that following the development of Port Bannatyne many boats anchored in Kames Bay. One form of medieval anchor, which is not so different in concept from a modern mooring, was a stone with a rope attached to it, which was dropped on to the seabed. This was superseded by anchors as we now know them when metal became available. Modern-day moorings are dropped on to the seabed and are designed to dig into the seabed by being dragged along the seabed.
6. I have been asked if Kames bay was used by boats for mooring prior to 1796 and if so in what way. Being a safe and sheltered anchorage I am certain that the bay was used for this purpose prior to 1796 but I cannot say to what extent."
[29] In cross-examination Mr MacLagan stated that harbour dues were charged at Rothesay as far back as the 17th century because there was evidence of their being rouped. The term "anchorage dues" referred to harbour dues, for tying up alongside a pier: anchoring in the harbour was not envisaged. He was not aware of Rothesay Town Council ever having endeavoured to charge anyone for mooring ex adverso the harbour. There were permanent moorings in Rothesay Bay from about the period 1872-77, as shown in a photograph produced by him. He did not think there were any charges for such moorings. Rowing boats were moored overnight in the inner harbour from about the 1950s and he expected that there would have been charges levied by the harbour trustees, but he could not be categorical about that. There were now pontoons at which yachts could moor. The harbour, and the pontoons in the east outer harbour, belonged to Argyll and Bute Council. There was no evidence of the Burgh or its successors taking any interest in Kames Bay or the moorings there. Bute County Council had effected the repair in 1962 as they were responsible for preventing coastal erosion.
[30] As a conveyancer he had studied pre-1874 titles in the Burgh of Rothesay. The Burgh owned the burgage land. He could not recall ever having found a sub-feu in any of the titles he had examined. Feuars in the centre of Rothesay inevitably paid their feus to Rothesay Town Council. Conveyances before 1874 were by way of a straightforward disposition, and he was not aware of the tenendas clause taking any particular form. He recalled the phrase "to be holden of His Majesty in free burgage tenure" in conveyances. He had also seen land held simply in feu. Older (18th century) conveyances by the Burgh tended to be dispositions, the later ones feu dispositions. There was no feu duty in burgage tenure. He had never been able to find out the extent of the area Rothesay Town Council held in burgage.
(iii) Dr Darren Hirst
[31] Dr Hirst (31) is a senior surveyor at Bidwells and manages the west coast marine estate on behalf of the petitioners. He has a degree in marine geography and a doctorate in Environmental Management of the UK Offshore Oil and Gas Industry. He has worked with Bidwells since January 2005, and Crown Estate work takes up approximately 90% of his time. He adopted as his evidence his affidavit (6/72 of process) dated 2 November 2009. This set out the position about mooring licences and the petitioners' dealings with the local boat owners, as summarised above.
[32] In paras 10, 13, 14 and 15 of his affidavit Dr Hirst stated as follows:
"10. Regarding the moorings at Kames Bay, I have been involved since the first application was submitted by Tim Saul in 2005 to set up a mooring association. There has been a lot of local opposition here, primarily because the local mooring owners are of the opinion that the Rothesay Charter gives them certain rights, including the right to moor free of charge. My discussions with Mr Saul have primarily been in connection with the formation of the association, about the area to be covered, how many moorings would be permitted under their agreement, and also the constitution. For the most part this has been amicable, though there has been some adverse comment and reaction in the press (not all of it accurate). To date, there are 68 moorings covered by the licence. Approximately 20 moorings remain unlicensed/unidentified.
13. The Crown Estate have always taken the view that they are the owners of the seabed and that the moorings should be licensed. Moorings in particular are managed because, if they are not, it becomes very difficult to manage the other uses of the foreshore and seabed. Moorings are typically located close to the shore and can interfere with other current and proposed developments - preventing access to slips etc. Conversely, if the moorings are not licensed, we do not know they are there and no account can be taken of them, so it's security of tenure for the mooring owner too. ...
14. From an income perspective, it probably costs more to administer the licensing system than is recovered by way of rental income.
15. The vast majority of mooring owners now recognise the benefit of having an effectively managed system of licensing, and have either obtained an individual licence or joined a mooring association or group. Inevitably, there are those that remain outwith the system and our moorings officers continue to carry out regular inspections to identify and follow these up."
(iv)
Andrew Wood
[33] Mr Wood (46) is the partner of Bidwells responsible for the West
Coast contract for the Crown Estate. He has a diploma in Rural Estate Management
and is a member of the Royal Institution of Chartered Surveyors. He adopted as
his evidence his affidavit (6/71 of process) dated 2 November 2009. This dealt with the
history of the dispute between the petitioners and those boat owners opposed to
a licensed moorings system.
(v)
Peter Korbel
[34] Mr Korbel (61), known as P J Korbel, is a
marine consultant. He holds qualifications as a Royal Yachting Association
Yacht Master Ocean Instructor and as an HSE Registered Class 4 Professional
Diving Instructor. He has over 40 years' experience in boating, moorings and
pontoons, and for a period ran his own diving company. He had been consultant
to the petitioners and Bidwells in relation to moorings for about 12 years. He
adopted as his evidence his affidavit dated 7 October 2009 (6/68 of process).
[35] In paras 9, 10, 11 and 16 of his affidavit Mr Korbel stated as follows:
"9 The whole of Bute has always been difficult; ever since we first started doing this we have met with resistance. As time has gone by most have now accepted the need for management of moorings and indeed demand it. In relation to Kames Bay in particular some individuals have been adamant that it is theirs to do with as they please. Those that pay for a licence object to this stance. The Rothesay Charter has always been the reason given on Bute for refusing to pay or accept mooring regulation. All over Bute, and on Arran and up to the Kyles of Bute, the Charter was raised, but as people realised management was actually a good thing and it was only г35 a year resistance has melted away.
10 The position taken by those at Kames Bay is that they should not be charged or regulated at all. They contacted the Council to take over from the Crown Estate and the Council said they would look into it and there was a big meeting about it. I was at the meeting. Someone asked the Council if they would charge, and the Council said they would and it would be about г300-г400 a year. This caused uproar, and after that they stopped looking to the council for support and reverted to claiming that they shouldn't be regulated at all because of the charter.
11 The dispute at Kames Bay has been going on for well over a decade. Every boating person on Bute is well aware that they need a licence. There have been meetings and I have been to the Bay on numerous occasions and have spoken to lots of people there. There is no doubt that some people feel they are being targeted. I feel though that it is not right and proper that one person is picked on - it has to be all of them together. I do probably know most of the people who have moorings there but they have not volunteered themselves so it would be wrong for me to try and identify some of them.
16 I feel this is not an argument about money - the licence fee is only г35. It is a bigger question of principle. They seem to think they have an inalienable right to use the seabed for free as they see fit and that is not the case. This seemed to have been brought home to most when the Council said how much they would charge."
(vi) Paul Banks
[36] Paul Banks (43) is the Coastal Manager
for Scotland of the petitioners
with an honours degree in Offshore Engineering and a Master of Science Degree
in Marine Resource Management. He was formerly a weather forecaster for the
Meteorological Office. In 2007 he became responsible for managing the coastal
estate for the whole of Scotland. He adopted as his evidence his affidavit dated 2 November 2009 (6/69 of process).
(vii) Mrs Helen Kerr
[37] Mrs Kerr (48) is a senior special data
specialist for the petitioners, for whom she has worked for 28 years. She
maintains a map record of the Crown estate assets across the whole of Scotland, including land as well as the
marine estate. She adopted as her evidence her affidavit dated 2 November 2009 (6/70 of process). She produced
plan A showing the whole of the Rothesay Charter Area, plan B showing only
Kames Bay and Rothesay Bay, and plan C showing only Rothesay Bay and lists of
moorings (6/42 and 43 of process).
(viii) Michael Shand
[38] Mr Shand (59) is a GIS cartographer at the University of Glasgow, where he has worked since 1972. He produced for the amicus
curiae the cartographic report dated February 2009 (7/7 of process), which
contains nine maps. He concluded that the land limits of the Royal Burgh of
Rothesay were as shown on maps 1 and 2 with a blue line and that land
boundaries would be expected to follow the ancient and civil parish boundaries
as shown with green or blue lines on maps 3 and 4. He also concluded that the
sea limits of the Burgh of Rothesay as described in the 1584 Charter extended
beyond the land limits, were as described on map 5 and encompassed the former
Sheriffdom of Bute (anciently Rothesay) and adjoining islands as coloured pink
on map 6. What could not be established from the maps were the actual
descriptors (merings) of the sea boundaries. It was open to conjecture whether
the sea limits extended "over the sea", as described in the original 1584 Charter,
or to the high (or low) water mark of the adjoining islands and mainland to
their mid-channel positions. Both possibilities were shown on maps 7 and 8. The
unauthorised moorings were located in Kames Bay but outwith
the recognised historical land boundaries of the Royal Burgh of Rothesay. These
were shown in map 9.
(ix) Harry Ellis
[39] Mr Ellis (66) is a retired engineer who recently moved to live in Port Bannatyne on a semi-permanent basis. He has had a house and a boat there for 16 years and owns a mooring in Port Bannatyne. He thought there were about 70-80 moorings there and that all vessels, with the exception of a couple of small fishing boats used for catching prawns, were pleasure craft. The moorings were mainly two-legged (Bahamian) moorings, but some of them consisted of just a heavy weight on the seabed.
[40] Mr Ellis said that an old photograph taken about 1880 (and published in Mr MacLagan's book) showed moorings in Kames Bay. There had been a herring industry before then and one could imagine that boats would be moored. The pier at Port Bannatyne dated from the late 1700s and there were fishermens' cottages there. The life of a mooring varied greatly as the chains wore out and had to be changed on a fairly regular basis. A friend of his, Malcolm MacMillan, who was now about 90, could remember moorings being there when he was a small boy. One could only surmise that sailing craft would use Kames Bay for shelter as it was sheltered from the prevailing south-westerly winds. The Council, who had never charged for moorings in his time, looked into the question of the moorings several years ago but "gave it up". Anyone with a mooring in the bay would be aware of the dispute over the 1584 Charter. He himself had arranged a public meeting with 16 people present. Mr MacMillan had had the royal charters examined by several QCs and they had always come back with the answer that boat owners had the right to moor free of charge.
[41] In cross-examination Mr Ellis stated that he was a member of the club, and not of the PBMA. He asserted that members of the PBMA supported his position. The photographs of Kames Bay taken in the late 1800s showed approximately 20 boats, too many to be under their own anchor. He had been responsible for Brodies writing to the court, as a result of which an amicus curiae had been appointed.
(x) George MacKenzie
[42] Mr MacKenzie (66), who has sailed since
the age of 12, has lived in Rothesay since 1975. He has a yacht, which he
inherited in 2008, moored in Kames Bay. He sailed in
it with the owner for 25 years before he inherited it. It was his view that
there were about 70-75 moorings in Kames bay, all used by yachts, with the
exception of one or two fishing boats. The evidence from Mr MacLagan's book
and early postcards showed that there had been moorings in Kames bay since the
early 1900s in the 1970s oil tankers had been chained to fixed moorings there. Two
yards in the area built racing yachts with very light anchors and he believed
that they were moored there. Vessels used miscellaneous methods of securing
themselves to the seabed, including moorings. He himself had moored there in
the 1960s. He understood from the Council Minute Books that the Parish of Port
Bannatyne had been created by Lord Bute in the late 1700s or early 1800s. The
quay would have been built there for a purpose.
[43] In cross-examination he stated that he was a member of the PBMA and had a licensed mooring for his yacht, just as the previous owner had. He had sailed for 50 year on the Clyde. There was a debate as to when moorings began.
(xi) John MacMillan
[44] Mr MacMillan (71) is a retired cable joiner who was born and brought
up in Port Bannatyne and still lives there. He is the vice-chairman of the
club and chairman of the PBMA. He has a licensed mooring in Kames Bay. He has sailed all his life. His family have had a mooring in Kames Bay for almost 200 years. His father, grandfather and great
grandfather had moorings there. His great great grandfather was a boatbuilder
who worked in a little shed building rowing boats and would also have had a
mooring. His Uncle Malcolm, now aged 85 or 86, has a mooring and had one when
he was younger. Port Bannatyne had been feued out about 200 years ago and that
was when the quay was built.
Submission for the petitioners
[46] The broad proposition advanced on behalf
of the petitioners was that the Crown has ownership of the seabed unless it has
been alienated and that, in the case of Kames Bay, it had not
been alienated.
[47] In order properly to understand the content of the royal charters it was necessary to place them in the historical context of mediaeval and sixteenth century society. Personal status was strictly structured on a hierarchical basis. Economic freedom was essentially non-existent and depended upon the granting of rights from feudal superiors, ultimately the king. At least in the early mediaeval period, feu farm grants of land were essentially unknown, land being granted in return for military service. There was no known case of the Crown having granted heritable title to the seabed anywhere within the historical period in question.
[48] In order properly to understand the content of the royal charters it was necessary to understand the nature of burghs in the historical context of mediaeval and sixteenth century society. Burghs were a separate form of grant, unlike other forms of feudal grants to individuals holding title as hierarchical feudal superiors. Burghs were the subject of special non-feudal rules concerning status and property. The primary purposes of burghal grants were to promote economic activity in the specified area and its environs for the public good, and to raise revenue for the Crown. The primary means of achievement of those purposes were:
(i) to create burghs with their own legal identity and persona;
(ii) to grant burghs a substantial degree of self-governance;
(iii) to grant burghs substantial degrees of judicial control in relation to both civil and criminal matters;
(iv) to grant rights of administrative control over certain economic activities such as markets and trading within the bounds of the burgh, and often within geographical areas extending beyond the boundaries of the burgh itself, such as over the sheriffdom;
(v) to grant burghs monopolies concerning exports;
(vi) to place many of these privileges exclusively in the hands of the burgesses
(vii) to afford certain protections to people travelling to and from the burgh, particularly in connection with trade;
(viii) to give inhabitants of the burgh a degree of personal freedom not enjoyed by those subject to feudal lords; and
(ix) to put the control and management of certain things, such as harbours, in the hands of the burgh, so that they could be properly utilised and maintained.
[49] The mechanism of putting those means of achievement in place was:
(i) to make the grant to the burgesses of the burgh, those being people of a particular status and role;
(ii) to procure that the burgesses held the rights in a particular capacity for the benefit of the burgh; and
(iii) to procure and recognise that the burgesses in turn owed various duties to the burgh and to the Crown.
[50] The Crown, without prejudice to its inalienable right to the regalia majora, did not assert any proprietorial right to the foreshore on the Isle of Bute in light of a declarator obtained by the Marquess of Bute in Court of Session proceedings on January 2004 to the effect that he had title to all areas of foreshore adjacent to land held by him by virtue of three separate feudal grants, including but also extending beyond the Isle of Bute. None of the issues arising in these proceedings had direct relevance to the foreshore as all of the moorings in question lay on the seabed.
[51] In relation to the port and harbour of Rothesay, no survey had been carried out to ascertain whether all port structures in Rothesay Bay had been built upon land, foreshore or seabed owned by the burgh or the trustees of the harbour. For the purposes of these proceedings only, the petitioners were prepared to proceed on the assumption that variously the burgh and trustees owned or have come to own the land and seabed upon which the port structures are built. The burgh owned the foreshore abutting its land. All structures concerning the harbour were built on the foreshore at the date of the grant and ha remained for a long time subsequently. Encroachments upon the seabed had been based on specific dispositions of that seabed from the Crown to the trustees and perhaps also the burgh. If any were not, this was an oversight.
[52] In relation to the charter of 1400, the phrase "to our beloved and faithful men of our town of Rothesay that they and their successors henceforth may be our free burgesses" did not result in every male inhabitant being a burgess. There was no mention of port and harbour. Usage might have allowed the burgh to have certain rights in relation to the harbour that probably existed at that time. None of those rights would have had anything to do with the laying of permanent moorings. None of those rights would have conveyed a right of permanent mooring to individual inhabitants of the burgh or the wider community. Archaeological, historical and documentary evidence suggested that permanent moorings laid on the seabed were not invented until the middle of the eighteenth century and accordingly could not have been in contemplation or encompassed by the grant of a charter in the year 1400. The charter of 1584 referred to the charter of 1400 as an "infeftment". That description had to be taken in context and did not amount to showing that there had been any conveyance of the sea or seabed in 1400. Indeed, the use of the term in connection with the land of the burgh had to be considered in the context of the relationship between burghs and the King in the early fifteenth century. It could not be suggested that any right vested in individuals living in the locality to put down permanent moorings could be derived from the charter of 1400.
[53] It was therefore necessary to consider the terms of the charter of 1584. Any proposition that a heritable title to the seabed had been granted by the charter required to be considered in light of the provisions in respect of the land. Burghal title was a specific species of grant. In relation to land it was of a particular type where the burgesses were given administrative powers over a specified area with the power to grant individual burghal titles in the form of tofts to individual burgesses, whereby they held a burghal title in return for various obligations to the burgh and the Crown. In the mediaeval period burghal title was different from feu farm title and it was initially unknown and later rare for a burgh to be granted on a feu farm basis. The charter of 1584 did not grant to the burgesses a feu farm title to the land described in the charter: it granted a burghal title. So far as was known the charter of 1584 was never recorded in the Register of Sasines, which was established only in 1617. Its registration in any earlier register was unknown. While there might have been some ceremony of sasine in relation to land conveyed by the charter, any ceremony for transferring the seabed was unknown. Transferring rights of ferry was known and invoked by particular symbols. While sasine might have been unnecessary if there was possession following upon a charter, this might have come to pass in connection with the lands, but not in connection with the seas. The phrase "privileges and liberty of territory" was not a disposition of the dominium utile but a grant of administrative, commercial and judicial rights. The phrase "and the liberties within all their limits following" indicated a distinction between land and sea. Power was given "to rent grant and feu all the lands within the aforesaid bounds", but that had to be looked at in the context of burghal title and burgh laws of the period. It was questionable if it meant more than the ability to grant a burgage title. Alternatively, if it did mean a power to alienate in feu farm, it appeared that this was a power granted to the burghal body to grant feus to burgesses, in effect on behalf of the Crown. Because of the nature of burghal grants it seemed that the burgh could make such grants although not itself holding its lands in feu farm. Even if that were incorrect, the provision gave the power only over lands, not over the seas or seabed. That showed a distinction between title to the lands and powers in respect of the sea.
[54] The grant in respect of the seas plainly related to the sea and not to the seabed. No title of any heritable nature could be given regarding the sea itself: it could be given only by alienating the seabed, but that was precisely what the charter of 1584 did not do. There was a clear distinction between the provisions concerning land and those concerning sea, for example:
(i) "Privilege and liberty of territory, and liberties within all their limits following ... namely over land ... And over the sea ..."
(ii) with power of the magistrates ... to rent, grant and feu all the lands within the foresaid bound and liberties of the same".
That distinction was not undermined or overcome by the following general provision:
"To hold and have all and whole said Burgh of Rothesay, and the limits and liberties of the same by land and sea, as is above specified, with the liberties, privileges ... immunities ... above-mentioned, to the Provost ... in feu and heritage, as our free Royal Burgh for ever by all the meiths and limits of the same, as it lies in length and breadth houses, biggings, gardens, orchards, cattle, plains, moors, seas, roads, paths, ... fowling, ... coals ... smiths, braziers, courts and their issues ... heriots, bloodwits, and mercheats of women, or the profits and escheats of the same".
That general provision was designed to specify included items, not to state that everything was held in feu and heritage in the sense of being a transfer of heritable property from the Crown. Several of the items listed were not heritable in character, so there was no reason why the interest in the seas should be taken as being heritable concerning the burgh interest in them. Nor was the general provision affected by the phrase "as well under the earth as above the earth, far and near to the limits of the aforesaid burgh".
[55] In light of the nature of the title granted to land, the charter could not properly be construed to mean that the Crown had granted title to the seabed. It could not have been that the Crown had any intention of conveying title to the seabed adjacent to areas of land geographically remote from Rothesay over which the burgh had no control or jurisdiction, such as the Ayrshire coast or the Kyles of Bute. By contrast, it was clear that administrative rights and commercial privileges had been granted over such an area of sea. It was common for charters of the period to grant administrative control and commercial privilege over areas of sea to burghs with ports, and in this case the wording of the charter was consistent, and indeed indicative, of such a grant. Rothesay was unusual in the extent of its sea area. Notwithstanding that, there was a perfectly understandable content to the grant of the sea areas that did not suggest a transfer of property in the sea or seabed. Generally, a title to property comprised in harbour works could not be inferred in the absence of express grant, except by a prescriptive possession. The charter was one where the grant was of free port with extensive limits rather than a grant of port at a particular place. It was established that this seldom gave a right of property in the shores within the precincts of the same, and a fortiori to the seabed. The duties at common law placed on ports in relation to the sea beyond the harbour walls was very limited. That was a further reason for heritable property beyond the harbour itself not being conveyed. The natural meaning of the parts of the harbour dealing with the sea areas was to confer a form of administrative right upon the burgh in respect of those areas. It was difficult to identify any motive that might have existed for the Crown wishing to alienate the seabed or the Burgh wishing to acquire it in 1584.
[56] It was suggested that the sea might be conveyed in property and that that would carry with it the seabed on the caelo usque ad infernos principle. That was erroneous. Conveyance of land carried air above and earth below, but a conveyance of air space or water space without any structure surrounding it, if competent at all, could be accomplished only by expressing tying the right to an interest in the solum below. In the absence of this any conveyance of mere space would be ineffectual and would not carry with it any interest in the solum. Further, if the grant were effectual by the granting of an interest in the solum for that purpose, that interest would not be ownership of the solum. Such a grant would not carry with it title to the land or seabed below it. The law of the tenement involved separate sales of air space occupied and enclosed by walls. At common law the sale of a flat gave title to the air space occupied but the developer retained title to the solum until it passed to the owner of the bottom flat when it was sold to him: the owner of the upper flat had merely a limited interest in the solum. In any event, the charter made no conveyance of a right of property in the sea: the reference to the sea rather than the seabed was a further indication of the rights in question having been administrative, commercial and judicial.
[57] The phrases "super terram" and "super maritima" in the charter did not denote transfer of property. In Magistrates of Rothsay v Officers of State (1820) FC 155 the point in dispute was whether the magistrates of Rothesay had not, within certain limits, an admiralty jurisdiction, which, in virtue of their burgh charter and of immemorial usage, they were entitled to exercise. There was a suggestion that the grant of the sea areas was a renewal of a grant of territory formerly possessed by the burgh. Counsel was engaged in suggesting that the charter did not grant Admiralty jurisdiction rather than engaged in establishing what it did grant, and in any event a grant of "territory" was itself potentially ambiguous in this context. Counsel in 1820 appeared to have been suggesting no more than that it was a grant of administrative territory rather than suggesting that it was one of a right in property. If he was suggesting more, he paid insufficient regard to the significance of the phrase "cum privilegio et libertate territorii et libertatis infra omnes bondas et limites subsequent. Quorum praefati burgenes et sui praedecessores fuerunt possessors, viz super terram inter terras de... et super maritima ...", it being noted that the English translations produced in these proceedings omit to translate "bondas et". In addition, counsel at para 14 of his answers made a subtle but potentially significant change to the Latin for the purposes of his argument, from "privilegio et libertate territorii et libertatis" to "privilegio territorii et libertatis" and then provided a somewhat approximate translation as "the privilege and liberty of territory and use or free enjoyment". Nonetheless, it appeared that the proposition made in 1820 for the Officers of State was that the phrase "privileges and liberties of territory and liberties within all the bounds and limits" was a reference to commercial and administrative rights and "territory" was meant in the administrative sense, which is the more ordinary and natural meaning of the word. In addition, there was a distinction to be drawn between privileges and liberties of territory on the one hand and liberties within all the bounds and limits on the other.
[58] If the grant was not a grant of property in the seabed, the delineation was of administrative and judicial powers and/or commercial rights and powers. The natural wording of the provision in context gave rise to a construction to the effect that the grant was one of administrative and perhaps judicial power over the area of sea in question. The preamble reference to the charter of 1400 "letting, occupying and using their lands and customs" illustrated the division between land rights and others, as did "lands and limits". That did not suggest any power whatsoever over the seabed, still less proprietorial title. The grant in respect of the area of sea in 1584 was a grant of administrative power over that area, so that relevant matters would be dealt with by the Burgh Court of Rothesay. These matters would include (possibly) maritime matters, and, if not, then other jurisdiction. Mackinlay's map of the County of Bute in 1814 described the extensive maritime jurisdiction of the Burgh of Rothesay. In Magistrates of Rothsay v Officers of State in 1820 the Court of Session considered whether the charter of 1584 had granted the Burgh of Rothesay maritime jurisdiction over the area of sea in question. The issue arose because the magistrates, council and police commissioners asserted maritime jurisdiction by virtue of it. The issue was strictly obiter and the court was divided on it. Two judges said that it had, two that it had not, and two reserved their opinions. The court decided by a majority of three to two that, even if such jurisdiction had been conferred, it had later been abolished by the Admiralty Act 1861. The better view was that the grant did convey a maritime jurisdiction and that this was largely its purpose. It was noteworthy that in their pleadings the counsel for the magistrates asserted that the only purpose of a grant in respect of the seas was to give the burgh a maritime jurisdiction. If the correct view was that a maritime jurisdiction had not been conveyed then there might nonetheless have been some remaining jurisdiction, although the nature of it was unclear and doubtful. That jurisdiction might have related to the commercial rights and powers mentioned below. Further, if the jurisdiction was not maritime alone, then it also included this other jurisdiction.
[59] The petition brought by the magistrates in 1820 submitted consuetude optima legum interpraes that the charter had been interpreted by custom from time immemorial, it being understood that its purpose was to confer upon the magistrates jurisdiction in maritime affairs and they asserted the existence of evidence of some instances of maritime jurisdiction being exercised in the burgh courts from 1757, with isolated evidence as early as 1722, but nothing earlier than that, no records being apparently extant. The Crown founded primarily on the 1681 Act but also submitted that the purported Admiralty jurisdiction exercised by the burgh was probably derived from a grant of Admiralty jurisdiction to the Earl of Bute which had subsequently been given up by the Marquess, but this was rebutted on behalf of the magistrates. The averments made in the proceedings in 1820 disclosed that custom and usage had established that the only content of any right over the area of sea was a purported maritime jurisdiction. It followed that the burgh had exercised no other rights over the area of sea before that time and there was no evidence that they did so after 1820 (which was unlikely in light of the outcome of the petition proceedings). It followed that the grant over the areas of sea had had, at least since 1681, and in any event since 1820, no content whatsoever.
[60] As mentioned in Magistrates of Rothsay v Officers of State, any maritime jurisdiction conferred upon the burgh was abolished or transferred by the Admiralty Act 1861. That Act conferred upon the High Admiral sole jurisdiction in all maritime and seafaring causes foreign or domestic whether civil or criminal whatsoever and over all persons concerned in the same. The Admiralty Court was abolished in 1830 (1 Wm IV ch 69, sections 21-29), with jurisdiction being transferred as appropriate between the Court of Session and the High Court of Justiciary and the Sheriff Court. Alternatively, any judicial jurisdiction conferred upon the burgh had been abolished along with the abolition of burgh courts, in the case of Rothesay not later than 1892 by virtue of the Burgh Police (Scotland) Act 1892. Any courts substituted for that jurisdiction had geographical jurisdiction significantly less than that suggested by the charter. Any other administrative powers exercised by the burgh and its successors over the area of sea in question terminated along with its declining commercial rights and powers, and any such exercise by the burgh or any successor body over the geographical area of sea described in the charter was unknown to the petitioners, and would have been impossible after the abolition of burghal monopolies in 1846. The Rothesay Municipal Government and Police Act extended the jurisdiction of the burgh to boats up to 500 yards offshore. That illustrated the absence or loss of any jurisdiction over the area of sea in the charter before that date. In addition, various bodies had had jurisdiction over some or all of the areas of sea identified in the charter, a jurisdiction which may be said to have been inconsistent with any rights or powers being in the hands of the Burgh of Rothesay or its successors in the absence of saving provisions. It was not being suggested that the mere fact of the existence of these bodies indicated an absence of power or jurisdiction on the part of the Burgh of Rothesay as they were created for specific purposes. Examples were the Trustees of Clyde Navigation (incorporated in 1858); the Trustees of the Port and Harbour of Greenock; the Trustees of Clyde Lighthouses; and the Clyde Port Authority, which had jurisdiction under the Clyde Navigation Act 1929 and the Clyde Port Authority Order Confirmation Act 1965 extending within the Firth of Clyde as far south as an east-west line drawn at the southern tip of Little Cumbrae.
Submission for the amicus curiae
[61] The submission by the amicus curiae was
that the terms of the 1584 charter were highly unusual in that the grant was
over a very large area of sea. He had been unable to find any other case where
a burgh had been granted a sea area in its charter. Moreover, the grant was
remarkable in that it covered such a vast area of sea. The reason might be
found in the very particular royal connection with Rothesay, which in Gaelic
meant King's Seat. Prince Charles was the current Duke of Rothesay and the
origins of the Dukedom went back to when the holder was heir to the Scottish
throne. The first holder was David, son of Robert III, in 1398 or 1401. Robert
II and Robert III spent a considerable amount of time at Rothesay Castle.
[62] The right of property in the seabed, being part of the regalia minora, was capable of alienation by the Crown. In Crown Estate Commissioners v Fairlie Yacht Slip Ltd 1979 SC 156 Lord President Emslie stated at p 169:
"It is now common ground between the parties that the seabed underlying territorial waters is, like the foreshore, vested in the Crown, and that the rights of the Crown therein are patrimonial rights, i.e., rights of property. The Lord Ordinary has so held and there is a wealth of authority to support his conclusion. It follows, and this is also conceded by the defenders, that the Crown may alienate its rights by grant to a subject."
In Shetland Salmon Farmers Association v Crown Estate Commissioners 1991 SLT 166 Lord Justice-Clerk Ross, having reviewed the relevant authorities, stated at p 174G-H:
"I accordingly regard the foregoing authorities as amply vouching the proposition that the Crown has a right of property in the seabed of territorial waters and that that right is derived from the jus coronae. I am also satisfied from the authorities that the right of property which the Crown has in the solum of the seabed can be alienated by the Crown."
Lord McCluskey stated at p 186C-D:
"I should have thought that there could now be no doubt that the Crown, assuming it had a proprietary right in the solum of the seabed, could lawfully alienate it, while retaining its responsibilities to safeguard public rights."
Lord Murray had doubts about the alienability of the seabed (p 182D).
[63] If the 1584 charter had had alienated the Crown's right of property in the seabed, it was plain that the Crown no longer owned the seabed in the area in question, including Kames Bay. If the seabed had been granted to the burgh, ownership would now rest in Argyll and Bute Council, who would have the right to charge for moorings. That would defeat the declarator sought by the petitioners.
[64] The charter granted "privilege and liberty of territory and liberties within all their limits". It was unlikely that the first part of that phrase related to land and the second part to the sea. "Territory" could mean land and sea, and "liberties" could relate to territory. The charter continued "over the land ... and over the sea". There was then a grant of specific rights to the burgh and to markets. In 1820 the magistrates of Rothesay relied on the jurisdiction of the burgh courts as being a maritime jurisdiction. There could be the grant of a right of property followed by the grant of an admiralty jurisdiction: there was not necessarily any inconsistency between the two. The power granted to rent etc related only to land. The clause halfway down page 3, dealing with how the property was to be held, could be seen as the equivalent of a tenendas clause in more modern deeds. It suggested the grant of a feudal right of property in some sense ("and the limits and liberties of the same by land and sea").
[65] So far as the possible forms of tenure that might have been granted were concerned, one was burgage tenure. It was not to be assumed that royal burghs were always granted under burgage tenure. The Stair Memorial Encyclopaedia Reissue, Vol 9 stated at para 17:
"Burghs were incorporated by charters granted by the king or other feudal superior. These charters set out their duties and liabilities to the granter, in return for which they received specialised privileges and powers. However, no burgh charters are known until the reign of William I ('the Lion', 1165-1214). The term 'royal burgh' is not found until 1401. Royal burghs had more extensive privileges than those created by feudal superiors, and in all cases the powers of the burgh varied according to the express provisions of its charter."
[66] Reference was also made to Walker, A Legal History of Scotland (1990), Vol II at pps 642-4, dealing with tenure in feu farm. It might be prudent not to jump to the conclusion that, just because the grant was of a royal burgh, the tenure must be in burgage. It might not matter if there was a grant of property in the seabed, but if the grant was in feu farm it was easier to conceive of it as covering the seabed. The form of tenure was a question worthy of consideration. Reid, The Law of Property in Scotland, stated at p 72, para 65:
"The land of a burgh was nominally feudal (feudum burgale, or tenure more burgi), being held of the burgh's superior, who in a royal burgh would be the Crown but otherwise might be a subject superior. The only substantial feudal right was that the burghers could be subject to the jurisdiction of the superior as well as that of the burgh court, though speaking generally the hallmark of the burgh was self-government and exemption from the general machinery of feudalism. Apart from that burgh land was, though nominally feudal, substantively allodial. ... There was no reddendo in burgage, since it was effectively allodial, except the obligation to 'watch and ward', which meant to assist in the keeping of the peace within the burgh. But this was scarcely a feudal prestation, since the benefit enured to the burghers themselves."
[67] Green's Encyclopaedia of Scots Law (1896) Vol II, stated at p 196:
"In the feudal system burgage tenure is a manner of holding lands and buildings within the territories of royal burghs. These burghs were created or 'erected' by force of a royal charter granting jurisdiction and liberties; providing for (or implying) services of watching and warding; and, it might be, stipulating for payment of a certain 'burgh mail' to the king. The charter might or might not define the territory of the burgh more or less exactly. It is not, however, to be understood that burgage tenure was limited to within the burgh wall or to the town. The territory of the burgh might extend far beyond. Nor, on the contrary, does it follow that everything within these limits is or was burgage."
[68] There had been evidence from the solicitor Mr MacLagan that some parts of the burgh of Rothesay were not held in burgage. On a first reading of the 1584 charter it was capable of being read as a feu farm grant. The reference to "feu and heritage" could indicate a feu farm grant. Walker, A Legal History of Scotland, Vol III stated at p 754:
"In 1584 it was enacted that infeftments of the king's lands were to be null if made otherwise than in feu farm."
That was the very same year as the charter. The charter was granted on 19 February and the two Acts mentioned in the relevant footnote were passed on 19 May and 20 August respectively. The Acts in question did not vouch the author's proposition and might have applied only to forfeited lands.
[69] The case of Dixon v Lawther (1823) 2S 176 dealt with the charter of the burgh of Dumbarton. The court held that "the subjects in question form part of, and are situate, within the territory of the burgh, and are, therefore, burgage lands; and that the tenure of the property was burgage; that sasine falls to be given in the ordinary manner by the symbols used in the case of burgage-holding; and that the instrument of sasine falls to be recorded in the register kept for the burgh". That statement was not consistent with the above statement by Professor Walker and with the view stated in the Stair Memorial Encyclopaedia. It was, however, not fatal that the tenure be in feu-farm rather than burgage. There was sufficient in the charter to say that the grant of property was in feu-farm. Even if it was in burgage, it could include a grant over the seabed.
[70] Two points had to be emphasised in relation to the question of property in the seabed. First, the tenendas clause had to be emphasised. In some way there was a grant of property from the 1584 charter. The words "in feu and heritage as a royal burgh" were indicative of the grant being in feu-farm. Before these words the charter granted a right to rent, grant and feu. The words quoted had to be contrasted with the terms of the 1400 charter - "possess henceforth as a free royal burgh": there was no mention of feu or heritage. A grant in feu-farm would be consistent with the increasing use of feu-farm in royal charters. Secondly, in the 1584 charter there was a monetary reddendo, as opposed to only burgage in the 1400 charter. It was accepted that it was decided in Dickson v Lawther in 1823 that a similar charter was a grant in burgage, but it was known that there were grants of burgage in feu-farm. The logic of 1823 just did not tie up. Mr MacLagan stated in his evidence that he had seen a grant of burgage, but that could have been in titles which originated in the 1400 charter. His evidence was not conclusive, and one required to go back to the terms of the 1584 charter itself. In any event, irrespective of whether the grant was in burgage or feu-farm, the same preposition was used in relation to both land and sea ("over the land and over the sea").
[71] When the foregoing points were considered, it could be seen that there was a very strong argument that the 1584 charter had alienated the seabed, including that part of it at Kames Bay, to the burgh. It should not be thought that simply because a grant of the seabed could not be explained that that meant there was no grant of the seabed. It might be that the reason lay in the particular importance of Rothesay to the Crown at that time.
[72] It had been submitted for the petitioners that some kind of positive prescription was required to clarify the title, but that was the case only where the bounds were uncertain. It did not apply here, for two separate reasons. First, Mr Shand was able to map out the extent of the grant. Secondly, and in any event, the declarator sought related to the seabed at Kames Bay by reference to a particular geographical limit.
[73] In relation to further grants over the seabed by the Crown, no doubt there had indeed been some, including to successors of the burgh, but the starting point had to be the charter and its interpretation. No doubt the Council, in taking grants, were unaware of or unwilling to assert their right of property. The grant of a lease to the Council was unnecessary. The right in question was an imprescriptible right: Napier, the Law of Prescription and Limitation in Scotland (1854), p 633 and the Prescription and Limitation (Scotland) Act 1973, section 7(2) and Schedule 3, para (a).
[74] The response for the petitioners accepted that in all likelihood it did not matter whether the grant in the charter was in burgage or in feu-farm. What mattered was the geographical extent of any grant of property. A burghal grant was less likely to encompass the seabed. The 1584 Acts referred to in Walker's footnote enacted that lands forfeited to the Crown should not be alienated again unless (i) the whole Parliament sanctioned it, and (ii) the alienation was in feu-farm. Burgh mails became relatively common as the obligation to provide military support fell away. The reference to a sum of money was consistent with it being a burgh mail.
[75] The proposition advanced by the amicus curiae was that in the 1584 charter there was one grant of property to the whole territory. That could not be the case and plainly was not right when one looked at the terms of the charter. It could not sensibly be the case that every right granted was intended to apply to the whole sea area.
[76] Green's Encyclopaedia at p 248 listed Rothesay as one of 64 royal burghs with burgage tenure and burgh register. There were restrictions on what a burgh could do in relation to land over which it had title or jurisdiction. Neither of the words "feu" and "heritage" was indicative of a feu-farm disposition. There was nothing magic about these words, which were used in burgage grants. The amicus curiae did not address the very plain wording of in the 1584 charter which showed that it was not granting a right of property: the use of the word "over" indicated that what was involved was merely a grant of jurisdiction. If the charter granted property in the seabed there was no mention of the seabed. All that Mr MacLagan's evidence did was to show that the charter might have carried ownership of an area in the burgh. The use of the word "liberties" did not suggest a grant of a real right in the land. The amicus curiae required to say that a grant of jurisdiction did not prevent the grant from also being one of heritable title. As a matter of principle that was probably right, but it involved saying that the 1584 charter made two wholly exceptional grants without any clear wording in relation to either. The grant in question was limited to one of free passage over a sea area.
[77] So far as prescriptive possession was concerned, in the context of the present case one was talking about clarification of the geographical area and the nature of the right itself. Prescriptive possession could operate only on a habile title, which the 1584 charter was not.
[78] The issue of ownership of the seabed in Kames Bay is a purely legal one and does not depend on the claimed benefits of a system of regulation or licensing of moorings. If the petitioners are the owners of the seabed then they have a right to regulate or license moorings there: if they do not own the seabed they have no such right.
[79] The submissions on ownership of the seabed in Kames Bay were perhaps over-elaborate. The issue is simply whether the royal charters granted ownership of the seabed in Kames Bay to the Royal Burgh of Rothesay. It is clear from the authorities to which reference was made that the Crown can competently alienate its right of property in the seabed, but in my judgment the royal charters in this case, properly construed, did not grant the property in the seabed to the Burgh, the successors of which are today Argyll and Bute Council. I agree with the view of the very experienced local conveyancer Mr MacLagan in para 3 of his affidavit that the seabed was retained by the Crown and is still owned by it. I think it would have been a very unusual step for the Crown to have alienated its property in the seabed without an obvious reason and I would have expected to see clear language indicating that it had done so. I do not consider that there is anything in the charters which indicates a grant of property in the seabed to the Burgh of Rothesay. I do not think it matters whether the grant was in burgage or in feu-farm, although I am inclined to the view that it was the former. Any grant over the sea area inclusive of Kames Bay was limited to a grant of administrative and judicial powers to the Burgh. The submission for the petitioners on this point therefore falls to be sustained. Acquisition by positive prescription does not arise because of the absence of a habile title, and in any event the possession founded upon for this purpose lacks the necessary characteristics, with the possible exception of openness (see para [100] below).
[80] It seems to me that this dispute about ownership of the seabed in Kames Bay has arisen because of the uninformed opinion of certain individuals that the royal charters granted property in the seabed to the Burgh. This view was based on a misconception, which I trust will now be dispelled.
[81] The submission for the petitioners on this point began by asking the question to whom the right of free port and harbour was granted. The charter stated that it was granted "to the magistrates and inhabitants". That grant had to be looked at in the context of the charter as a whole and in the context of the status of a burgh as a body with its own legal personality. The grant was to the magistrates: it was no doubt for the benefit of the inhabitants, but that did not mean that each inhabitant had a right to free port.
[82] So far as the meaning and effect of a right of free port and harbour was concerned, the relevant provision in the 1584 charter was as follows:
"a free port and harbour for ships in the bay and station of said Burgh of Rothesay and Kyles of Bute, the stations of Cumbrae, Fairlie and Holy Isle, and all others within the foresaid bounds, with free entrance and exit for ships and boats, for carrying burdens with all kinds of goods and merchandise not prohibited ... with all privileges and liberties of a free port ..., with power for the support of the aforesaid port, to receive and raise off goods, merchandise, ships ... carrying and transporting into the market of the same all kinds of lesser customs and other duties" ... [usually levied; with an obligation to declare these to the Exchequer] ... "Yet all the greater customs you shall save and reserve for us and deliver an account of the same annually into our Exchequer".
[83] In considering the nature and scope of rights relating to ports and harbours it was necessary to recognise that there was a distinction potentially to be drawn between the port itself and any area in respect of which the grantee of the rights of port and harbour might be given authority to exercise them. The port as such was the harbour at Rothesay but it seemed clear that the intention of the grant in the charter was that the port would have at least some powers over a wider area than its immediate. Those who suggested that in some way the inhabitants of Bute had a right to lay permanent moorings by virtue of the grant of free port and harbour to the burgesses of the Burgh of Rothesay in 1584 misunderstood the nature of free port and harbour. They seemed to assume that "free" meant an unregulated free-for-all with no payments being incurred, but this was a fundamental and serious misapprehension. The amicus curiae wrongly equated "free port" with "free trade". The terms of the grant compelled consideration of what was meant by "free". It was clear that customs, both petty and great, were to be levied, so trade was not free in that sense. It was probable that there were relaxations in duties for burgesses of the burgh; this was a common feature of free port in the period, but it did not mean that all trade was free in the sense of being without duties or customs. "Free" in the context of the charter was directed towards freedom of movement in the sense of being free from obstacle or a hindrance, rather than free from charge. Ships could enter the area freely in that sense. Further, it was clear that ships would not be charged for entering or exiting or moving within the sea area defined. In the context of the time these were important grants, protecting the commercial status and power of Rothesay. However, free port and harbour plainly did not mean that those vessels could discharge their cargoes without payment of various duties at the port. Those charges - protected by the freedoms mentioned - were to be imposed for the benefit of the burgh and also the benefit of the king. Particularly at an early date those rights would have been most valuable to Rothesay. It was not just the port that was free, but the burgh itself. It was the burgh that had the rights to charge and restrict, not the port.
[84] Separately, "free port", properly used, primarily identified a port that was not a private pier, but public. There were distinctions between the two types of port. The rights of a private pier owner depended on prior usage of the foreshore in question. If the public used it in a relevant way (boat use) the proprietor would not be able to exclude them or charge them. If there were no such usage the proprietor would be able to exclude or accept users as he wished and charge for the use of the pier as he desired. The owner or controller of a free port or harbour had no entitlement to choose who could use his facilities: any member of the public was entitled to use them on payment of lawful dues, which could not be chosen by the grantee of the harbour right. Accordingly, the key feature of a free port was that members of the public had a right to use it and could not be turned away at the whim of its proprietor or controller. Far from implying the benefit of some benefit without payment, the right of free port carried with it the right to charge dues for its use. Those dues were such as were specified by the grant, established by immemorial practice or prescribed in a subsequent statutory provision. With the right ran the obligation to use the revenue to maintain the port in a fit condition. The public right to use a free port was part of the Crown's regalia majora and was therefore inalienable.
[85] In the medieval period free port might also have implied a degree of freedom from certain tolls and customs, but it was important to recognise that this was the freedom of the burgesses only from paying certain tolls and dues. Travelling merchants and foreigners had to pay to trade at the markets and the burgh still had to account to the Crown for appropriate Crown dues and customs. Further, the right to trade through the free port was limited to burgesses.
[86] The right of free port was in essence an incorporeal right independent of any corporeal right in the physical port or harbour. The subsidiary rights constituting that right normally comprised:
(i) a right to construct or operate a port, subject to having title to the ground on which it was built;
(ii) a right to prohibit other ports within its district;
(iii) a right to levy from the operators of piers it permitted to be built by proprietors of relevant land dues in lieu of what it would levy at its own harbour keys;
(iv) a right to levy customary dues at its harbour; and
(v) questionably, a right to levy anchorage dues but not, it was suggested, where the vessel was anchoring only in ordinary course of navigation using its own anchors. A right to do so might possibly have been acquired by prescriptive possession, most likely only in the confines of the port itself and not anywhere on the open sea or in natural inlets or stations.
[87] It was instructive to recognise that the right of a pier proprietor to operate in the precinct of a free port would be dependent upon three things: (a) having title to the land upon which he built the pier; (b) having permission of the port authority to construct and operate the pier; and (c) paying the requisite dues to that authority. The corollary was that permission of the port authority would not cure any lack of title that the operator might have with respect to the solum of his pier. The right of free port was part of the regalia because of the legitimate public interest in it. As the public had a deep interest in means of conveyance and transport the right of ferry and other regalia such as free port was vested in the Sovereign. Even if it were incorrect to say that permanent moorings were necessarily separate from a right of free port and harbour, the extent of any grant in relation to the nature of the rights conferred, where the grant was ambiguous, could be explained by prescriptive possession. No mention was made in the 1584 charter of any powers in respect of mooring. It was to be expected that the burgh charged for moorings for ships moored at the quay at Rothesay. To the knowledge of the petitioners, there was no evidence that the burgh ever charged for moorings at quays within the area of sea identified in that charter, with the exception of those that were attached to land within the land limit of the burgh. The petitioners were unaware whether the burgh ever charged ships for moorings at "stations" within the sea area, but it was considered unlikely that they did so. All historical evidence suggested that such moorings would have been transient and involved the use of the ship's own anchoring equipment. While in law charging anchoring dues in port could be a normal incident of a grant of free port, and there was some authority to suggest that such dues could be levied in respect of a natural bay where it was held to be a port, at least in England, the levying of a mooring charge for ships using their own anchors in bays or stations would be inconsistent with ordinary rights of navigation and could be established only in exceptional circumstances by clear prescriptive possession. There was no evidence of the grant to the Burgh of Rothesay incorporating this and no evidence of the Burgh operating on that basis. The submission made on behalf of the Burgh in the case in 1820 was inconsistent with such usage.
[88] Accordingly, (i) there was no evidence that the Burgh of Rothesay ever considered that as part of its grant it had a right to levy charges for ships mooring at stations or elsewhere other than at its quays and piers or piers attached to the land constituting the Burgh; (ii) there was no evidence that the Burgh ever fortified its grant of free port and harbour by acts of possession in any way relevant to the issues in this case; and (iii) such evidence as existed indicated an absence of any relevant right on the part of the Burgh.
[89] So far as rights in relation to moorings were concerned, where vessels anchored within the physical harbour, a right to levy charges was likely to have been part of the grant. Obviously when vessels were moored to the quay or pier there would be a right to charge for that mooring. As permanent moorings did not exist in 1584, no right to lay them was included in the grant under the charter. Had the Burgh after the invention of permanent moorings wished to lay some it would not have been entitled to do so as that was not part of the rights associated with a grant of free port and harbour. Even if that were not correct, the Burgh's entitlement would have arisen only after open and peaceable possession without interruption on the faith of its charter for the prescriptive period of 40 years at that time. Even in that event the right would have been only in respect of those particular moorings at that particular location. Each set of moorings and the right to lay them would have accrued only after each individual laying and possession for the prescriptive period. There was no evidence that the burgh so acted anywhere in the sea area concerned. Accordingly, it never acquired the right to lay permanent moorings anywhere on the seabed. Even if that is not correct, and the Burgh did have some underlying right to lay permanent moorings, it never did so. Had the Burgh involved itself in permanent moorings as part of its rights of port and harbour (assuming this was open to it), it would have become responsible for their maintenance. If private individuals had laid moorings on the seabed, an the port in some manner had purported to sanction or permit or regulate them, this would no more have cured the lack of title of those laying the moorings than would such permission have cured the title of a person building a pier on someone else's land. In any event, in respect of moorings laid by private individuals, there was no evidence that the Burgh had ever sought to sanction, regulate or interfere with them, or to do anything to suggest that they were laid in connection with the right of free port or otherwise in connection with the rights of the Burgh. Private individuals who laid moorings on the seabed had no right to do so as the seabed was Crown property. The grant of free port and harbour was to the burgesses of the Burgh of Rothesay. Their statutory successors were Argyll and Bute Council. Even if the grant of free port carried with it some right to lay permanent moorings, and even if that right continued to exist through to the present time, the right would be vested in Argyll and Bute Council and not in individual members of the public, whether or not they resided on Bute. There was no evidence that any of the moorings had ever been laid or supervised by the Burgh or its successors. Furthermore, there was no evidence of relevant possession to clarify or fortify the extent of any grant to include the area in question or the right in issue.
[90] It was important to distinguish between the port itself, which would have had and has a very restricted geographical area, and the area over which certain rights arising from the grant of free port applied. It was common and necessary for charters to grant protection to the grantee of the port by extending certain rights over a geographical area greater than the port itself. The port itself comprised the harbour and its structures on land or in water. That would be the usual situation and there was nothing in the charter to indicate otherwise. There was no reason to suppose that the intention was that the port itself, or the harbour, was to be defined as the whole sea area. The wording of the grant of the right to have a port did not define it as the whole sea area. Indeed, the charter did not define the geographical limit of the port at all. The geographical limit of the port was its physical extent at the date of the grant. At that time no structures existed other than on land and on the foreshore. It would be a surprising proposition that the port was the whole sea area, in the context of the mediaeval and post-mediaeval world and Rothesay's place in it. Ports and harbours, particularly in the context of the period including 1400-1600, meant artificially constructed structures such as piers and quays. That could be asserted on the basis of:
(i) common sense and ordinary meaning;
(ii) Stair, Institutions, II.3.61 distinguished ports from creeks and stations which were natural because "ports are built artificially and need frequent reparation";
(iii) The non-existence, prior to the mid 18th century, of permanent moorings laid on the seabed, the only alternatives prior to that being that vessels were tied up to piers and quays or were anchored using their own anchoring equipment which, when not in use, was drawn on board the vessel; and
(iv) that position was carried forward to the statutory provisions, for example, the Harbours Docks Piers Clauses Act 1847, sections 2 and 33.
[91] Ports and harbours being artificially constructed structures, they were, necessarily, connected to land. That would inevitably mean that they were connected to the foreshore and indeed, at least in part, built on it. It would accordingly have been pointless and illegal to create a port that included the entire geographical area of sea defined in a charter when none of it could be utilised for the building of port structures, except the area immediately adjacent to the land jurisdiction of the burgh. The charter disclosed no intention whatsoever that the area of the port itself was ever greater than the harbour in Rothesay Bay. In common with ports and harbours throughout the United Kingdom, in the 18th and 19th centuries the powers vested in the Burgh of Rothesay to operate the port under the burghal grant were insufficient to cope with the demands of expanding commercial and recreational use. A series of general Acts of Parliament sought to provide additional powers to harbour authorities where those Acts were adopted. Foremost among these was the Harbour Docks Piers Clauses Act 1847 and the Harbours and Passing Tolls Etc Act 1861. Various local Acts were introduced to create statutory harbour authorities and to give those authorities greater powers in connection with extending, financing and administering ports and harbours throughout the United Kingdom. A series of such Acts was passed in connection with Rothesay Harbour, namely, the Rothesay Harbour Act 1861, the Rothesay Harbour Orders 1867, 1882, 1898 and 1908 and the Rothesay Harbour Order Confirmation Act 1937. The local Acts passed in connection with Rothesay Harbour never sought to suggest that the port or harbour had any geographical area greater than the physical structure of Rothesay Harbour and its immediate environs. The Rothesay Harbour Order 1867 prescribed the limits of the harbour for the purposes of the Order to be the whole works and property of the harbour trustees, and otherwise co-extensive seaward with the jurisdiction conferred by the Rothesay Municipal Government and Police Act 1846 (9 and 10 Vict ch 299), which provided jurisdiction offshore from the Burgh to boats sitting up to a distance of 500 yards. That position was maintained by the Rothesay Harbour Order 1882. the 1846 Act was passed in connection with Burgh jurisdiction, for the Provost, Baillies, Procurator Fiscal of Rothesay and all officers of the Burgh. The extent of the jurisdiction granted was over the territory of the Burgh "and over piers and harbours ... and all boats and vessels in the said harbours and the said piers, or lying within 500 yards of the shore of the said Burgh". It is clear that this provision was enacted in order to extend the jurisdiction of the Burgh to vessels a short distance from its shore. Any such provision would have been unnecessary had the Burgh or its successors at that date had any powers or jurisdiction over the sea area described in the charter.
[92] In relation to the sphere of influence in the grant of the wider geographical area than the port itself, the question arose whether that was over the whole of the large sea area described in the charter or over a lesser area. It was submitted that the ordinary meaning meant the latter. The formulation "for ships" in the charter was relevant. The large sea area was not directly associated with the port provisions in the charter. It was of general application. The grant was of a port for ships in a particular area or area. So far as the reference to "stations" was concerned, stations in this context meant places where ships habitually anchored. If any right to anchor was relevant at all, it would only have been one to use the ship's own anchors as nothing else existed at the time. The right was an administrative and commercial right in the Burgh of Rothesay to control or charge in respect of any goods offloaded therefrom by lighters or otherwise the stations listed in the charter did not include Kames Bay and there was no evidence of Kames Bay being a station in 1584. The question was whether the various powers implicit in a grant of free port, including the ones to prevent or benefit from competing piers elsewhere, applied throughout the sea area or whether the powers were more limited either in content or in geographical area. The wording clearly indicated that the power in respect of competing piers was not included. If the whole sea area had been included, that would have meant that the Burgh could either have prevented the construction of any pier on parts of the mainland, including the Ayrshire coast or the Kyles of Bute and many other places where it had no property right in or administrative right over the land, or could have consented to such piers but levied tolls in respect of them. That was an inherently unlikely interpretation. Usually such controls concerning piers were stated under reference to a length of coast adjacent to the port or the bay where the port was, not stated in relation to many square miles of sea and hundreds of miles of coastline.
[93] This was a case where the scope of the grant might be explained by prescriptive possession. There was no evidence of the Burgh ever interfering with piers or benefiting from piers by taking dues where those piers were on or connected to lands remote from Bute. Piers were built on the Isle of Bute without the Burgh protesting or charging, or claiming any interest. The sole exception known to the petitioners was the pier at Craigmore, where a pier was proposed in 1861 and the promoters sought permission of the Burgh and the Rothesay Harbour Trustees for its construction. The proposal came to nothing but was revived in 1875. At that time the Burgh consented subject to conditions on the basis that it had "certain rights over the foreshore of the said burgh and of port and harbour within the Burgh and in the Bay of Rothesay". They took a share of the proceeds from the new pier to cover losses from vessels not calling at Rothesay. By that time the foreshore at Craigmore was recognised to be the property of the Marquess of Bute. Accordingly, the interest being enforced was of port and harbour and not one of property; the Burgh was recognising that the relevant rights of port and harbour were within the Burgh and Bay of Rothesay; and Craigmore was on land within the land boundary of the Burgh of Rothesay and consequently the Burgh had power to prevent competing piers there, in contrast to other piers not constructed within Burgh lands on the Isle of Bute where the Burgh had no tile or interest. This interpretation of the grant was in keeping with the following observation of Lord Gifford in Ayr Harbour Trustees v Weir (1876) 14R 79 at p 86:
"A vague right of harbour and port extending over many miles of coast may not entitle the harbour trustees to prevent anyone, with property adjoining or bounded by the sea or seashore, from having free access to the sea, and from launching ships therein, or from landing or embarking at pleasure, and reaching the sea."
[94] While certain rights of port and harbour might have been germane to vessels at stations listed in the grant, for example, in relation to their discharging their cargoes by lighter, these had disappeared over the centuries. While there might in former years have been monopoly rights whereby goods had to pass through Rothesay Harbour, these had eventually fallen into desuetude by 1820 and any monopoly had in any event been abolished in 1846. The submission made on behalf of the magistrates of Rothesay in the 1820 case amounted to a representation that there was no content to the burghal grant, including port and harbour, in respect of the sea area, the only content being in respect of the land area of the Burgh and its foreshore and the Bay of Rothesay. The precincts of the port for the purposes of the rights of port and harbour were therefore substantially restricted and did not include Kames Bay. If moorings could be considered analogous to piers, the Burgh had no more power concerning these at Kames Bay than it had in relation to any piers there.
[95] There was no express mention of moorings of any kind in the charter. All archaeological, historical and documentary evidence suggested that permanent moorings did not exist at the time of the charter. There could therefore have been no grant in the charter allowing the burgesses or the Burgh, still less individual persons, any right to lay permanent moorings on the seabed.
[96] So far as the stone pier "harbour" at Kames Bay was concerned, historical and geographical evidence indicated a stone quay had been constructed in the late 18th century under the auspices of the Barony of Kames. Until then there was no quay and no "harbour". The petitioners understood that it was built only on the foreshore. The current Ordnance Survey map showed that it extended approximately three metres onto the seabed. That did not imply that it was built on the seabed and it was quite possible that the configuration of the mean low water springs had changed since it was constructed. If that were not correct then the title of the petitioners to the seabed must have been overlooked at the time of its construction. In 1801 the then Lord Bannatyne, in connection with the development of Port Bannatyne, made provision by feu charter for regulating the "harbour" in terms of dues, regulations, shore master and other matters. All this was done without reference to the Burgh of Rothesay or its successors and those bodies never sought to assert title or jurisdiction over the harbour there. There was evidence that Bute County Council carried out some repairs to the quay in 1962, but there was no suggestion that this was done under any perceived jurisdiction arising from the Rothesay charters, and it was explicable by reference to the statutory jurisdiction of the Council at that time.
[97] All this was eloquent of the Port of Rothesay being of limited geographical size and of it having by the early 19th century no relevant rights in respect of the sea area identified in the charter. An extension of the quay, which would have engaged the interest of the Crown in the seabed, was planned, but the scheme did not proceed. There was no known evidence of the owners of the quay paying any dues to the Burgh for its operation. This appeared consistent with the Burgh's stated position in 1820.
[98] In about 1856 a T-shaped wooden pier ("the steamer pier") was built to the east of the stone quay at Kames Bay by a Mr Boyle, who had earlier acquired the Barony of Kames. In 1857 the petitioners' predecessors granted a disposition (6/48 of process) of an area of foreshore and seabed for that construction and a proposed extension of the wooden pier. The disposition covered an area of foreshore where the pier had already been constructed, together with an additional area for the extension. At least the latter extended so far as to include a portion of the seabed. According to a 1952 plan at least half of the wooden pier as eventually constructed lay on the seabed rather than the foreshore. The quay was constructed for steamers and the local Press in 1858 recorded that a steamer, the Rothesay Castle, lay overnight at Port Bannatyne. There were records indicating that in 1881 steamers lay there overnight every second night. By 1913 the pier was receiving 200 steamer calls each summer season. All that indicated that the pier extended beyond the foreshore. The disposition of that part of the area which was foreshore predated the dispute with the Marquess of Bute about his title to the Bute foreshore. Mr Hoyle sold the Barony, including the wooden pier, to the Marquess of Bute in 1863 and in 1900 the Marquess sold the pier and some associated heritage onshore to the Port Bannatyne Pier Company Limited. By the Second World War ownership of the pier had passed to a Mr McIntyre. The Admiralty took a lease of the pier from him to use it in connection with submarine training and in 1952 sought permission from the petitioners' predecessors to erect an extension to the wooden pier, primarily for a staircase. That approach was in recognition of the Crown's title to the seabed, it having been recognised by that date that title to the foreshore lay with the Marquess. A lease of a small area of the seabed was granted for the extension (which was at the eastward section at the end of the pier) by the petitioners' predecessors. The lease terminated in 1958 and the extension was removed by the Royal Navy. There was no known evidence of the owners of the pier paying any dues to the Burgh in respect of its operation. That appeared to be consistent with the Burgh's stated position in 1820.
[99] Even if the grant in the charter was one of the solum of the port at the harbour, the charter was unclear about its area. It was accepted that, on that hypothesis, its limits would fall to be determined by prescriptive possession. At the time of the grant the harbour existed only on the foreshore and possession was taken only there, on land already owned by the Burgh. Later works remained only on the foreshore. It was probably only in the 19th century that any works extended over the seabed. From 1831 these were undertaken only by the statutory harbour trustees. Any possession or property right to those parts was by and of that body, not the Burgh. In any event, there was no evidence of possession by the Burgh or even the trustees anywhere outwith the immediate environs of the harbour. Further, there was evidence that when the trustees encroached upon the seabed in the course of further development of the harbour, they sought and obtained dispositions from the Crown of property in the seabed.
[100] The amicus curiae had raised the possibility of possession fortifying or helping to define an otherwise uncertain grant of heritable title to the seabed. The evidence produced did not in any way support any heritable title to the seabed in that area et separatim any part of it. To have significance in this context possession had to have the following characteristics:
(i) it must be exercised by the person with the supposed right;
(ii) it must be exercised as an assertion of right;
(iii) the assertion of right must be on the basis of the title founded upon;
(iv) the possession must involve physical control (civil possession being irrelevant in the current context);
(v) it must involve holding the property;
(vi) it must be exclusive;
(vii) it must be open and peaceable;
(viii) it must be of a character or quality that demonstrates an assertion of a right in property;
(ix) it must be inconsistent with anyone else holding a right in property over the area in question; and
(x) it must be material in the context of the area over which title is claimed.
The evidence of possession referred to by the amicus curiae lacked any of these characteristics, with the possible exception of openness.
[101] The amicus curiae had also raised the possibility of possession fortifying or helping to define an otherwise uncertain grant of a right to place moorings, possibly derived from the right of free port and harbour. The evidence produced in relation to alleged possession did not in any way support any expansion of the right of free port and harbour to include the placing of permanent moorings. The possession was not exercised further to the grant in the charter. No permanent moorings had been laid for approximately 250 years after its grant. Any commencement of the placing of permanent moorings was causally unrelated to the charter. The commencement of the laying of moorings in Kames Bay had to do simply with the development of a village there in the 18th or 19th centuries and the development of recreational sailing. The placing of permanent moorings was carried out on an opportunistic basis, or in the mistaken belief that it was an incident of ordinary navigation. Any possession in the form of laying permanent moorings was not done by the person with the supposed right, namely, the Burgh of Rothesay or its successors. Any moorings laid were put down by private individuals. Further, there was no suggestion that these moorings were laid under licence from or by permission of the Burgh or its successors. If the suggestion were that Rothesay or its successors had the right to lay permanent moorings anywhere within the sea area identified in the charter (whether or not because that whole area supposedly comprised the port of Rothesay) that position was inconsistent with the facts about possession. Throughout the sea area identified in the charter people and organisations had obtained licences to lay permanent moorings from the petitioners, not from the successors of the Burgh of Rothesay. Throughout that area the Crown had sought to enforce its interest in connection with the laying of moorings. In the large majority of cases the Crown's title and the petitioners' interest had been recognised and appropriate leases or licences entered into. In a small minority of cases there had been reluctance for largely unspecified reasons, sometimes based on a wrongful insistence that permanent moorings were an incident of ordinary navigation. To the knowledge of the petitioners, no persons involved in such arguments, except in relation to the waters immediately surrounding the Isle of Bute, had ever suggested that the Crown did not have title in the matter by reason of the charter. The Burgh of Rothesay and its successors had never sought to suggest any power on its part to control such moorings, and they had not made any concerted assertion that the Crown did not have such right. There had never been any suggestion of the Crown not having such rights in any of the relevant sea areas remote from the Isle of Bute, and in connection with Isle of Bute waters the statutory successor of the Burgh had not entered appearance in these proceedings. Over the vast majority of the sea area identified in the charter neither the Burgh of Rothesay nor its successors, nor individuals with a connection to the Isle of Bute had sought to lay moorings other than in very limited locations in the immediately vicinity of Bute, most particularly in Kames Bay. If the suggestion was not that the Burgh of Rothesay or its successors had the right to lay permanent moorings anywhere within the sea area identified in the charter, then there was no basis for suggesting any such right in relation to Kames Bay. There could be no suggestion that Kames Bay was in any way linked to or took its character and rights from Rothesay Harbour: the rights in respect of Kames Bay could be no different from the rights in respect of any part of the large sea area identified in the charter.
[102] The Crown had continued to exercise its property rights and rights in relation to permanent moorings throughout the seabed below the area of sea identified in the charter. Records existed which showed that the Crown insisted upon its titular interest in the seabed over the period. In the early centuries following the charter there would have been no occasion for this to arise but since the modern age, and particularly in the 19th and 20th centuries, the Crown had disponed or leased area of the seabed in question (as shown on a plan produced). Excluding mooring agreements, there were in the area in question as at the early summer of 2009 approximately 114 agreements in existence, including leases, sub-leases, licences and consents. In addition the petitioners at that time held records of 32 sales of parts of the seabed in that area. There would have been many more agreements entered into in the past in respect of areas of seabed within the described perimeters, but no record of these was readily available. Similarly, the Crown had entered into a number of leases and licences involving permanent moorings on the seabed. In the relevant area of sea there were, as at the early summer of 2009, 72 current licences in place with a variety of natural and legal persons whereby permission was given on behalf of the Crown for the laying of moorings between one and 175 in number, the total number being 945.
[103] So far as Rothesay Harbour was concerned, in 1898 the Board of Trade on behalf of the Crown had granted a feu disposition to the Rothesay Harbour Trustees for two areas of seabed below the low water mark occupied by a boat slip, by an extension to the north pier already constructed, and to be occupied by a further extension to be constructed. In 1910 the Board of Trade on behalf of the Crown granted a feu disposition to the Rothesay Harbour Trustees for an area of seabed below the low water mark to be used by the trustees for the construction of a pier extension. It was therefore clear that the Burgh of Rothesay did not have a heritable title to the seabed even in close proximity to the then existing port structures. Had it had such title then it would have been the granter of these feu dispositions. Furthermore, these dispositions were evidence that the Crown was continuing to assert its title to the seabed at those dates. All local Acts relating to Rothesay Harbour contained Crown savings enacting that the provisions should not be taken as a consent or surrender of any rights, interests, powers, authorities or privileges transferred to the predecessors of the petitioners by the Crown Lands Act 1866 (for example, the Rothesay Harbours Order 1867, section 18 and the Rothesay Harbours Order 1898, section 34. Section 26 of the Rothesay Harbour Order 1908 provided that "nothing in the order affects prejudicially nay estate right ... of the Crown and in particular nothing herein ... authorises the trustees to take, use or in any manner interfere with any parts of the shore or bed of the sea belonging to His Majesty in right of his Crown and under management of [the petitioners' predecessors] without consent." So far as Kames Bay itself was concerned, the position in respect of the stone quay and the wooden pier had been dealt with above. The petitioners had entered into a dredging licence with Port Bannatyne Marina Limited in 2008 for dredging for the construction of a breakwater for a marina within part of Kames Bay, the dredging to take place on the seabed. At the same time a lease of an area of seabed there was entered into for the purposes of the marina. Further to those grants a breakwater had recently been constructed. At some point in the past a concrete or stone slipway had been constructed at the high water mark. The date of its construction was unknown to the petitioners but it would in any event have been constructed on the foreshore, which was the property of the Marquess of Bute. The petitioners were unaware of any other constructions on the foreshore or the seabed in the area of Kames Bay, or of any other activities save for the fixed moorings in question that would engage the interests of the Crown.
[104] Even if some right to lay permanent moorings had been granted by the charter, that right was lost by negative prescription in the centuries following the grant. Any such right was one held by the Burgh of Rothesay and not by individuals. There was no evidence of possession of any relevant right by the Burgh at any time before or after 1584, or of the Burgh exercising any interest in piers outwith the immediate land area of the Burgh and Rothesay Harbour. The evidence of the non-existence of permanent moorings before the 18th century indicated that possession of moorings was impossible before then and there was no other form of possession of any relevant seabed areas. The creation of the harbour trust in 1831 with limited geographical jurisdiction suggested no possession of any rights on the seabed further afield at that time either by the trustees or by the Burgh. Even if the Burgh had previously enjoyed rights over the large sea area before that time, long negative prescription would apply so that any rights would have been lost in the early 1870s. There was no evidence that the Burgh of Rothesay asserted any right or interest after the creation of the harbour trust, and any such assertion would have been surprising. A fortiori the declared position of the Magistrates of Rothesay themselves in the petition proceedings in 1820 demonstrated that they would have made no assertion of possession of any rights on the seabed outwith the natural and immediate environs of Rothesay Harbour after 1820. Accordingly, even if rights had existed before then they would have been lost by 1860.
[105] The submission by the amicus curiae was that there was no doubt that the charter granted a right of free port and harbour. The relevant question was the extent of that right and whether it still survived. There were four hurdles which had to be surmounted by those asserting that the right of free port and harbour gave a right to lay permanent moorings in Kames Bay:
[106] The first hurdle was that the right of free port and harbour would have to have carried with it some heritable right in the seabed, or alternatively not just a right to charge dues but to possess or occupy those parts of the seabed covered by the grant of free port and harbour. It was necessary to distinguish the right to charge dues from the right to lay moorings. This was the most difficult hurdle to overcome as the petitioners had referred to a large body of authority against it. The Scottish Law Commission Discussion Paper on the Law of the Foreshore and Seabed (Discussion Paper No 113, April 2001) stated at p 46 as follows:
"7.2 The right of port and harbour has long been regarded as one of the regalia minora. Consequently, it can be alienated by the Crown to a third party. This could be done when the Crown granted lands to royal burghs in a barony. However, in the vast majority of cases the right of harbour was granted by statute.
7.3 The grantee of a Crown grant has the exclusive right to establish a harbour for use by the general public and can levy harbour dues which must be used to maintain the harbour. Like salmon fishings, the right of port and harbour is an example of an incorporeal separate tenement. The right can therefore be enjoyed separately from ownership of the land and seabed which constitute the port or harbour. Put another way, the grant of port and harbour does not per se convey the ownership of the land and seabed which make up the harbour. Indeed, when the ownership of the seabed was considered to be inalienable by the Crown, it would follow - at least as a matter of theory - that the ownership of the seabed could not be conveyed in a grant of port and harbour. Even where the grantee was given authority to build a harbour on the seabed, there would still be no grant of ownership of the seabed.
7.4 It is now settled that the Crown can alienate the seabed, subject to the public's rights. However, since the harbours Docks and Piers Act 1847 statutes establishing harbours invariably contained a savings clause, reserving the Crown's ownership of the seabed. In other words, it is clear that the statute merely confers a right of port and harbour and does not dispone the seabed to the grantee. If the harbour authorities wish to use the seabed, they must approach the Crown Estate Commissioners, who will usually be prepared to lease part of the seabed to them. And, of course, the Commissioners will charge rent for the lease of the seabed.
7.5 Where land has been disposed by the Crown for the purpose of providing a harbour, it is submitted that prima facie the seabed of the harbour is not included. This is because the right of port and harbour is per se a separate tenement. Where the deed is ambiguous, it is thought that there is a rebuttable presumption against the seabed being included. Ultimately it will be a matter of construction of the deed or statute to determine whether ownership of the seabed was conveyed to the grantee. In the absence of an express grant of the seabed to the harbour authorities, instances will be rare.
7.6 Given the technical, if not obscure, nature of this area of the law, it is not surprising that it has given rise to some degree of dissatisfaction. In particular, harbour authorities who believed they owned the seabed of the harbour have been upset to discover that this is not the case and that they must lease the seabed from the Crown Estate Commissioners.
7.7 The law in Scotland is settled that ownership of the seabed does not pass with a grant of port and harbour. Unless there has been a separate disposition or lease of the seabed, harbour authorities have no proprietary rights in relation to the seabed of the harbour. Nevertheless, it is clear that harbour authorities are sometimes unaware of the limitations of their rights in relation to the ownership of the seabed of the harbour."
The Commission went on to pose the question whether, in the interests of clarity and consistency, there should be a statutory statement that, in the absence of an express statement to the contrary, the grant of a right of port and harbour did not include a conveyance of the seabed of the harbour.
[107] The second hurdle was that it had to be accepted that permanent moorings were not covered by the terms of the charter. A permanent mooring was a development of permanently fixing a boat at a harbour. What the charter permitted was the setting up of a harbour with rights over the precincts. The right in question could be said to be a right to charge for a means of parking boats. The grant by the Crown could incorporate later technological innovations which brought about the same result as was intended by the grant (cf Reid, The Law of Property in Scotland, p 395, para 487 dealing with rural servitudes). In Smith v Saxton 1928 SN 59 Lord Constable held that there was no warrant either in fact or in law for the proposition that motor traffic was different in kind from carriage traffic, or that a road fit for motor cars was different in kind from a road fit for ordinary carts and carriages. Some support could also be derived from the Fairlie Yacht case: as permanent moorings were not an incident of ordinary navigation they could therefore be said to be an incident of free port and harbour.
[108] The third hurdle was the question whether the right to charge dues covered not only the physical harbour at Rothesay, but also Kames Bay. Since the right to establish a port could cover Kames Bay, the right to exact dues could also cover Kames Bay.
[109] The fourth hurdle arose from the petitioners' proposition that there had been no relevant possession for the purpose of positive prescription in relation to Kames Bay, any possession having been by individuals, not the Burgh, and the Burgh and its successors never having sought to take any part in the moorings or to charge for the moorings. The answer to that was that possession at Kames Bay was not required to perfect the right, which had to be seen a single right covering the whole area of the monopoly. The fact that the right had not been exercised at a certain place within the bounds of the grant was irrelevant. In Magistrates of Edinburgh v Scot (1836) 14 S 922 it was held that the royal charters in favour of the City of Edinburgh conferred a good right to levy harbour dues on all vessels and goods loaded and unloaded from and upon the shore of the Firth of Forth between St Nicholas' Chapel and Wardie Brow, or at least from or upon any part of the shore opposite to a certain property at Trinity or Trinity Bay, as freely and to the same extent, and as fully, as, by virtue of their royal charters, they were entitled to do at the Port of Leith, and that the owner of this property had no right to occupy the shore, for making piers or similar purposes, or for loading and unloading goods, without paying the harbour dues to the City, exigible under its charters. At p 932 Lord MacKenzie, in the First Division, said:
"I see no good answer made by the defender... he alleges a general dereliction to levy dues at any part of Trinity: but upon this subject he makes no relevant statement whatsoever. The ports of Leith and Newhaven, with their respective precincts, were held by the pursuers, and if they continued to levy dues at these ports, that was enough to prevent the plea of dereliction from applying to any part of the precincts. Had the defender averred a constant and universal use to land, or to ship goods and passengers, at some place within the precincts, and in defiance of the right granted to the pursuers, that would have raised a different case. But there is no such averment made, and in the absence of it, I hold that levying dues at the port prevents dereliction from attaching to any portion of the precincts."
[110] The case of Magistrates of Renfrew v Hoby (1854) 16 D 348 dealt with charters in favour of the pursuers conferring upon them a right of free harbour, and of the customs and anchorages of the Clyde, within the limits of the burgh. The Lord Justice Clerk stated at p 353:
"That the defenders' lands are within the bounds of the grant of harbour is also a point on which no real doubt can be entertained. The lands were part of the burgal territory - recently feued off to the defenders by the burgh, in burgage holding - lying along the Clyde, on which the grant of free port and harbour is given. Such a grant frequently comprehends an extent far greater than the territory of the burgh or burgal lands; but that, in this case, it covers at least the whole territory of burgh lying along the Clyde seems to me to be a clear result from the terms of the charter itself."
[111] In Dundee Harbour Trustees v Dougal (1846) 11 D 6 it was held that the terms of a title founded on as a grant of free port and harbour were capable of being explained by positive prescription. Lord Mackenzie stated at p 23:
"I do not say that the right of port is lost by negative prescription, because dues may not be levied at every part of the port; but, then, if there be a marked practice where there is a harbour - if one party holds a right, and another asserts the contrary, and the latter is set at defiance, and possession is had by the former, and this possession is acquiesced in from immemorial time, I think that immunity from the asserted right has been obtained by the negative prescription."
Discussion and conclusion
[112] The principal issue which I have to determine here is what a grant of free port and harbour carries with it. In my judgment it carries with it only a right of unimpeded access to the port or harbour, not a right of gratuitous use of the port or harbour. Charges for the use of the harbour were clearly imposed. In other words, the port or harbour is a public, not a private one. I agree with the view expressed by Mr MacLagan in para 3 of his affidavit that the boat owners challenging the Crown's right to dues are ascribing too literal a meaning to the word "free" and giving it a construction it does not warrant. In any event, whatever the grant of free port and harbour included, it did not, in my opinion, carry with it the right to lay permanent moorings on the seabed. I am satisfied, on the basis of the evidence of Dr Rose, that at the time of the charters permanent moorings as we know them today did not exist and I therefore accept the submission for the petitioners that there could have been no question of the charters allowing the burgesses or the burgh, still less individual persons, any right to lay permanent moorings on the seabed. I do not consider that the right to lay permanent moorings on the seabed can be classified as the modern equivalent of any right granted by the charters. Moreover, for the reasons given in the submission for the petitioners, I am of the opinion that the right to lay moorings by prescriptive possession does not arise.
Decision
[113] In light of my conclusions I shall pronounce
decree of declarator in the terms sought by the petitioners in para [1] above.