Scottish Court of Session Decisions

This was an action of suspension and interdict at the instance of the Magistrates of the royal burgh of Montrose against the Commercial Bank of Scotland, Limited, in which it was sought to interdict the respondents from “enclosing, or in any way interfering, by themselves or others acting under their authority or on their behalf, with that area or piece of open ground lying immediately to the west of the west boundary wall enclosing the respondents' property, situated on the west side of the High Street of Montrose, and extending said area or open piece of ground from said wall westwards, until the said area or

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piece of open ground adjoins the subjects recently acquired by the North British Railway Company from the Board of Trade, and reclaimed from the bed of the estuary of the river South Esk, and also from preventing or in any way interfering with the complainers or the members of said community of Montrose from exercising the full right of property in, to, and over the said area or open piece of ground.”

Montrose is a royal burgh of great antiquity. By a charter of Robert II. confirming a charter of David II., dated 1st May 1370, there was granted to the burgesses of Montrose the whole burgh with the pertinents.

The title founded upon by the complainers in the action was a charter granted by King David II. dated 18th February 1409, which contained the following—“David, Dei gracia Rex Scotorum Omnibus probis hominibus tocius terre sue tam clericis quam laycis presentibus et futuris Salutem; Sciatis nos Dedissi, Concessissi et hac presenti carta nostra confirmasse, delectis Burgensibus nostris Burgi nostri de Monros Renovacionem carte cuius tenor talis est—David Rex Scocie Episcopis, Abbitibus, Comitibus, Justiciariis, Baronibus, vicecomitibus, ministrisque omnibus et probis hominibus tocius regni sui Francis, Scocis, Anglicis, et aliis alienigenis tam presentibus quam futuris salutem, Sciant omnes me Dedisse Concessisse et hac presenti carta mea Confirmasse Dilectis Burgensibus meis totam terram meam de Salorkio jacentem et situatam juxta portum de Stronnay versus aquilonem sicut Raudus de Grantoun, Camerarius meus Thor Vicecomes, et Ricardus Clericus ea vice proinerunt quando earn metiti sunt pro quatuor Carucatis terre cum dimidia. Habendam et Tenendam dictam peciam terre dictis Burgensibus meis in libero Burgo cum omnibus rectitudinibus et libertatibus ad liberum Burgum pertinentibus adeo libere sicut bona villa mea de Perth de me tenetur et cum omnibus rectitudinibus, empcionis, et vendicionis legitime pertinentibus ad opus et officium Burgensiam et mercatorem de aqua de Thawhoke usque Fyndoune et de Fyndone per partes Boreales usque ad aquam de Carwdy et sic descendendo per partes australes usque ad aquam de Deychty sicut currit in Drumlay.” They also produced a series of later charters conferring rights of custom and trading and other rights and privileges.

The complainers averred that under their charters they had right to the whole territory of the burgh, which comprehended the piece of ground in dispute.

This piece of ground, which was about a quarter of an acre in extent, lay in an angle formed by the respondents' garden wall on the east, and by the boundary wall of the adjoining fen on the south; prior to the operations of the North British Railway Company after mentioned, it was bounded on the west and north by the high-water mark of the Montrose basin, and subsequently by the ground reclaimed by the railway company from the basin.

The title of the respondents, the Commercial Bank, flowed from the burgh. The earliest title produced was a disposition dated 1st January 1680 and recorded 28th April 1709, granted by John Ouchterlony to George Ouchterlony, in which the description was as follows—“All and haill that my tenement of land, and haill houses and biggings thereof, back and fore, under and above, with the yeard and pertinents yrof, lyand contigouslie and together on the west side of the Murray Street of the said burgh, bounded with ye High Street on the east, the sand-mark on the west, Archibald Lindsay on the south, and Robert Ronald, Provost, his lands, on the north parts.”

The next title produced was a sasine following upon a disposition by George Ouchterlony and his creditors in favour of Alexander Scott, recorded in the burgh register on 10th May 1717, in which the following was the description:—“All and haill those two inner or back tenements of land, haill houses and biggings thereof, high and laigh, with the closs, yeard, taill, and pertinents lyand contigue and together on the west side of the Castlegate of Montrose, bounded with the fore tenement yrof on the east, the flood-mark on the west, the lands belonging to the heirs of the deceast John Scott of Commiestown on the north, and Elizabeth Gray, her lands, on the south.” The title in favour of the respondents was a disposition by Mrs Isabella Scott or Baines, dated 11th May and 14th June, and recorded in the burgh register of Montrose 12th August 1875, in which the ground in question was described as bounded “on the west by the flood-mark. “The boundary in the intervening titles was the same.

In the statement of facts for the complainers the following averments were made:—(Stat. 1). .. “From time immemorial large deposits of mud have been carried by the currents in Montrose basin and added to the lands adjoining its foreshores. To these natural deposits the complainers and the community of Montrose have for time immemorial added, by themselves or others on their behalf. There have thus been reclaimed from the sea considerable areas of ground, which the community and burgesses have ever since, and far beyond the prescriptive period, possessed, used, and enjoyed, as parts and pertinents of the burgh.” (Stat. 2) “The piece of open ground described in the prayer is a part and portion of the ground so formed alluvione and reclaimed by the complainers, or their predecessors in office, as representing the community of Montrose, or others in their behalf. This piece of ground has been possessed, occupied, and enjoyed by the complainers or their predecessors and by the said community, as part of the burgh property, without challenge for upwards of forty years. This piece of ground is within the territory of the burgh and entirely outside the property of the respondents, from which it is now, and has for time immemorial been separated by a wall. The respondents have no access to, and have never in point of fact asserted or exercised any right whatever over, the said piece of ground. It has been used by the inhabitants of Montrose as a recreation ground, as a free passage for people along the shore, and for other purposes from time immemorial. The site of the wall which forms the western boundary of the respondents' property marks the line to which the ancient flood-mark of Montrose Basin reached, and marks the western limit of the respondents' property as described in their title-deeds.”

The respondents in their answers stated that any deposits which might have been made on the shore of the Montrose basin contiguous to their property became their property by accretion;

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and further, that the ground in dispute was embraced in their title, lying as it did within their boundary on the west, which was the flood-mark.

The complainers pleaded—“(1) By virtue of their burgh title and the possession condescended on following thereon, the complainers are proprietors of said open piece of ground, and are entitled to interdict any interference therewith without their authority. (2) The said open piece of ground being within the territory of the burgh of Montrose, belongs in property to the complainers, and the respondents having threatened to assume possession of said open piece of ground, the complainers are entitled to interdict, as craved.”

The respondents pleaded—“(1) The complainers have no title to sue. (3) The area or open piece of ground in question being the property of the respondents and embraced in their titles, the note ought to be refused. (4) The said area or piece of ground being embraced in the respondents' title, it was incapable of being acquired by the complainers in the manner alleged by them. (5) The complainers’ statements as to their use and occupation of said piece of ground being unfounded in fact, the note ought to be refused.”

A proof was taken. From the evidence led it appeared that the extent of the ground had not varied appreciably within the memory of the witnesses, although the height had been increased by the deposit of rubbish.

John Fitchet, shipmaster, aged eighty-four, adduced as a witness by the complainers, deponed that when he was a boy he used to drill on the ground before Waterloo. “I have seen as many as fifty boys being drilled on this ground at a time. There was plenty of room for them to go through their evolutions when the tide was out. When the tide was in perhaps it did not suit so well. We drilled there whether the tide was in or out. I should say the ground is higher now than it was when I was a boy. My memory does not serve me to say whether it is about the same in extent. I cannot say there is more dry ground now than there was then.”

With regard to the possession, John Anderson, burgh surveyor, deponed—“When the railway operations commenced the ground in question was just a piece of waste ground, with material of various kinds lying upon it. It was put to no particular use except for depositing rubbish upon. Rubbish was shot there by any person who wanted to get rid of it. It was just what is called a free toom.”

James Ross, Sheriff-Clerk of Forfarshire, and formerly joint-agent for the Commercial Bank at Montrose, deponed—“There was no occupation of this piece of ground by anybody, unless you could say that the Ochterlonys’ gardener was in occupation of it by throwing rubbish out of the garden into the place. It lay completely out of the way of foot-passengers. It was a horrid nasty place, and nobody would go there who could help it.. .. There was no occupation of this ground by the burgh Corporation, or anyone on their behalf, all the time I remember.”

Alexander Anderson, aged eighty-seven, who was employed as a gardener by the respondents' predecessors from 1832 onwards, deponed—“I was in the habit of throwing weeds and garden rubbish over the back wall of the garden next the Back Sands or Basin. There were some steps inside the garden wall which enabled me to do so.”

It was also proved that there was in the wall what had been, or what had been intended to be, an opening, but that this had been built up at a remote date.

Several of the complainers’ witnesses expressed the opinion that this wall had been built upon the old flood-mark. They founded this opinion upon the fact that the boundary-walls of the feus to the north, which were admittedly built upon what was flood-mark before the railway company's reclamations, were in line with the respondents' wall; and also on the fact that the wall was built of scurdy, which was stated by one of the witnesses to be a particularly old kind of stone.

The feu immediately adjoining that of the respondents' to the south, also granted by the Magistrates, and upon which a flour-mill had been built, was described as bounded “by the flood-mark on the north and west parts, as the said piece of ground or tail was sometime enclosed on the north and west parts by stone or brick dykes.”

In 1842 the proprietors of the mill-feu, on the occasion of their desiring to lay a drain through the ground in dispute, had granted to the respondents' predecessors a declaration that the construction of the drain should not be construed as implying any right on their part to the property of the ground, which it was stated they had no desire to claim. With regard to the right of the burgh to the foreshore, it appeared that when the North British, Arbroath, and Montrose Railway Company wished to extend their line they applied to the Board of Trade for a title to such portions of the foreshore as they required, and obtained from them a feu-disposition dated 2d August 1878. By this disposition the Board of Trade, in consideration of the sum of £912, 10s. paid to them by the railway company, disponed to them those portions of the foreshore and bed of the river South Esk below high-water-mark which were required for their operations. With regard to this James Mitchell, a town councillor, deponed—“When I was in the town council I heard that the Board of Trade proposed to give a title to the railway company. We made no objection, but we caused intimation to be made to the Board of Trade that we wanted certain matters arranged, and certain privileges of the town conserved before a title was given. (Q) Did the town council consider that the Board of Trade was entitled to dispone or feu all the foreshore to the railway company? (A) Subject to the rights the town council had, I am not aware what price the Board of Trade got for the foreshore; if we made any inquiry—which I don't recollect—we got no satisfactory answer. We were content that the Board of Trade should dispone the land and get the price so long as our rights were conserved.” After getting the conveyance the railway company proceeded to reclaim from the sea those portions of the foreshore so acquired, and constructed their line over the ground reclaimed.

The harbour rights which were originally in the burgh were given to harbour trustees by statute, for a valid consideration, about 1839.

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The Lord Ordinary ( Kinnear) on 19th December 1885 sustained the third plea-in-law for the respondents and dismissed the note.

“ Opinion.—I think it unnecessary to determine whether the complainers have a title under which they can claim to hold land lying to the seaward of the respondents' boundary, because they have failed to prove that the piece of ground in dispute has been reclaimed from the sea since the date of the respondents' title. The respondent's boundary under their title is the flood-mark, and they make no claim to the foreshore. But the piece of ground in question is within the high-water mark of ordinary spring tides, and the greater part of it at least has been so during the whole period to which the evidence relates. It has long been used as a place for shooting rubbish, and the surface is formed for the most part of deposited material. It can hardly be doubted therefore that some portion of the ground has been gained from the sea. But there is no satisfactory evidence as to the extent to which the land has advanced or as to the time when the advance was made. The evidence which goes furthest back is that of John Fitchet, a man of eighty-four; and from his account of it, it appears that although the ground may have gained in height it has gained nothing material in extent since the earliest time to which his memory reaches back; and if anything has been gained, it has not been from operations for reclaiming land, but from the use of an existing piece of waste land for shooting rubbish.

The complainers’ argument was rested mainly on an assumption that the respondents' sea-wall must have been built on the extreme verge of their property—that is, on the flood-mark, as it was at the date when the wall was built. But this is a mere assumption; or if it can be supported to any extent by inference from the position of the neighbouring sea-walls, the reasoning is too speculative to justify a conclusion that would deprive the respondents of property that, in the existing condition of the land, is admittedly within their title.

It is not immaterial to observe that the title has been frequently renewed by cognition during a period for which it is certain that the ground in dispute has been either entirely, or with no material exception, above high water-mark. It may be that these renewals of the investiture being mere recognitions of the right of succession to an existing estate will not preclude the burgh from recurring to the state of things at the date of the original grant, to ascertain the true extent of the estate. But there is no evidence whatever as to the condition of the land at the date of the original grant. It may be that the sea has at one time receded. But it is equally possible that at an earlier time it may have gained on the land. There is some evidence to suggest that there may have been a considerable fluctuation, and at all events there is no evidence inconsistent with that hypothesis.

The result is that the ground in dispute as it now stands is within the respondents' title, and that it is not proved that it was covered by the sea at the date of the original grant.”

The complainers reclaimed and argued—(1) Upon the evidence the Lord Ordinary was wrong, as it was proved that the respondents' wall was built upon what was the flood-mark at the date of their title. (2) The respondents held under a bounding title, and could therefore not prescribe a right to anything beyond the boundary. The right to the foreshore was in the burgh. Under the charter of King David II. the boundary of the burgh to the west was the water of Tayock, which was to the west of the flood-mark, and only visible at low water. The boundary in the complainer's charter was different from that in the respondent's title, and therefore the case did not fall under the principle of Hunter v. The Lord Advocate, infra cit., but under that of following cases, viz.— Smart v. The Magistrates of Dundee, November 22, 1797, 3 Paton's App. 606, 8 Brown's Parl. Cas. 119; Todd v. The Clyde Trustees, January 23, 1840, 2 D. 357, aff. 2 Rob 333; Berry v. Holden, December 10, 1840, 3 D. 205.

The respondents replied—(1) The complainers had failed to prove that the ground in question had been reclaimed since the date of the respondents' title. There had been no possession on the part of the burgh of such a character as to establish any right of property— Magistrates of Edinburgh v. Magistrates of Leith, &c., July 10, 1877, 4 R. 997. (2) The complainers had no title to interfere. They had not proved that they had any right to the foreshore. Under their charter the burgh was merely the proprietor of lands de facto bounded by the sea— Agnew v. The Lord Advocate, January 21, 1873, 11 Macph. 309; The Lord Advocate and the Clyde Trustees v. Lord Blantyre, June 17, 1879, 6 R. (H.L.) 72. The description of the boundary in the charter founded on could not be applied The extent of the burgh was there said to be four and a half plough-gates of land, and the latter part of the description merely applied to privileges of trading. The complainers had therefore by their feu to the respondents divested themselves of all right seaward— Hunter v. The Lord Advocate, &c., June 25, 1869, 7 Macph. 899; Blyth's Trustees v. Shaw-Stewart, November 13, 1883, 11 R. 99; Paterson v. M. of Ailsa, March 11, 1846, 8 D. 752, per Lord Wood; Campbell v. Brown, November 18, 1813, F.C.; Boucher v. Crawford, November 30, 1814, F.C.; Bell's Prin., secs. 642, 643; Rankine on Land Ownership, pp. 95, 97; Ersk. Inst. ii. 1, 14, ii. 6, 17.