Scottish Court of Session Decisions

This was an action of declarator and interdict at the instance of George Keith of Usan, near Montrose, against Mrs Smyth and Mrs Stansfield, proprietrices of the estate of Dunninald, lying immediately to the west of the lands of Usan. The conclusions of the summons were for declarator “that the pursuer is proprietor of the salmon-fishings in the sea adjacent to his lands and estate of Usan or Ulyssesbaven, including the lands of Scotstown, and that the western boundary thereof seawards is as delineated on two plans hereof, dated 22d June 1811, prepared by George

Page: 51↓

Robertson, land-surveyor in Montrose, the one signed with reference to a disposition of the lands of Dunninald, dated 9th and registered in the Books of our Council and Session the 11th, both days of November 1811, granted by Robert Spears, Esquire, in favour of the late Peter Arkley, Esquire of Dunninald, and the other signed with reference to a disposition of the said lands of Usan by the said Robert Spears to the late George Keith, Esquire of Usan, dated 15th March 1817, and registered in the Books of our Council and Session 21st April 1835:” and to have the defenders interdicted, “by themselves, their tenants, servants, or others, from fishing for salmon in the sea to the east of the west boundary seawards of the pursuer's said lands and estate of Usan, as delineated as aforesaid on the foresaid plans, and from entering or landing upon the foreshore of the pursuer's lands and estate of Usan to the east of the said west boundary seawards for the purpose of shooting or drawing their nets.”

Prior to 1811 both estates of Usan and Dunninald were the property of Mr Robert Spears. By disposition dated 9th and registered in the Books of Council and Session 11th November 1811, Mr Spears disponed to Peter Arkley, Esquire, the defenders' author, certain parts and portions of the lands and barony of Dunninald (except the salmon-fishings), as the same were “particularly delineated on a plan and admeasurement thereof by George Robertson, land-surveyor in Montrose, dated the 22d day of June last, and subscribed by me the said Robert Spears of the date of these presents as relative hereto, by which plan it appears that the foresaid lands, including roads, contain 571 acres 3 roods or thereby Scotch measure, in which measurement both parties acquiesce.”

By disposition dated 30th October 1815, and registered in the Books of Council and Session 6th June 1821, Peter Arkley acquired from Robert Spears “All and Whole the right of salmon-fishing on the sea coast of the said estate of Dunninald, disponed by me to the said Peter Arkley … with power to the said Peter Arkley and his foresaids to use such boats and nets as they shall think proper for fishing the same, and to restrain all others from fishing within the said lands, but which right of salmon-fishing shall extend only to the sea coast immediately adjacent or opposite to the lands of Dunninald, belonging to the said Peter Arkley, and not to the salmon-fishings in the Southesk, or on the sea coast opposite or adjacent to the lands of Scotstown and Usan still belonging to me.”

By disposition and assignation dated 15th March 1817, and registered in the Books of Council and Session 21st April 1835, fol lowing on a minute of sale between Robert Spears and Alexander Keith, on behalf of his brother George Keith of Usan, the pursuer's author Robert Spears disponed to George Keith all and whole the lands now known as the estate of Usan as for principal, and certain other lands as for warrandice, “as also the right of salmon-fishing in the sea and river of Southesk adjacent to the said lands of Ulyssesbaven,” and the superiority or dominium, directum of the said lands of Dunninald, “which lands and superiorities before narrated compose the whole property in the county of Forfar belonging to me, and purchased from David Scott, Esquire, merchant in London, only son and heir of the deceased David Scott, Esquire of Dunninald with the exception of the lands and estate of Dunninald, and part of Scotstown and others, sold by me to Peter Arkley, Esquire, younger of Cleppington, by disposition dated the 9th and registered in the Books of Session the 11th days of November 1811, and with the exception also of the salmon-fishings in the sea opposite to the said lands of Dunninald, afterwards conveyed by me to the said Peter Arkley by disposition dated the 30th day of October 1815,” and “which lands now disponed to the said George Keith as principal, are contained in two plans and admeasurements thereof by George Robertson, land-surveyor in Montrose, and subscribed by us the said Robert Spears and Alexander Keith of the date of these presents as relative hereto, by which plans it appears that the foresaid lands, including roads, contain 683 acres or thereby Scotch mea sure, in which measurement both parties ac quiesce.”

The pursuer averred—“The plan referred to in the said disposition in favour of Peter Arkley shows the eastern boundary of the lands sold to him running across the foreshore and projected seawards in exactly the same line as the plan referred to in the disposition in favour of the pursuer's author shows the western boundary of the pursuer's lands. The pursuer maintains that the dispositions in favour of the defenders' author must be read with reference to the relative plan of the lands acquired by them, and that they are not entitled to prosecute their salmon-fishings beyond the boundary line between their said lands and estate of Dunninald and the foreshores thereof, and the pursuer's lands of Usan and the foreshores thereof, as laid down on the said plan, and which line corresponds with that laid down on the plan in accordance with which the pursuer's lands and estate of Usan were conveyed to him and his predecessors, and have been possessed by them, and that the defenders are not entitled in the prosecution of their said fishings to enter upon, or land or shoot or draw their nets on, the foreshore of the pursuer's said lands to the east of the said boundary.”

The defenders in their answer to this averment maintained—“That in virtue of their titles to the said salmon-fishings, and the possession fol lowing thereon, the boundary between their said fishings and the pursuer's salmon-fishings is … a perpendicular line let fall seaward from the end of the land march between the pursuer's and defenders' properties, upon a straight line drawn in a direction parallel to the coast, and representing the average line of coast at that place. The said line parallel to the coast is the result or mean of lines drawn from various points on the coast to other points on the said coast, and re presents the average of these lines, and therefore the average line of coast at that place, having regard to the inequalities existing there.”

On 14th November 1883 the Lord Ordinary ( M'Laren) pronounced this interlocutor:—“The Lord Ordinary having considered the cause, before further answer, remits to Mr Thomas Brumby Johnston, Geographer Royal to the Queen in Scotland, to lay down, on a copy of the Ordnance Survey map, a line (which may be either a straight line or an arc of a circle, according to

Page: 52↓

the nature of the case) opposite and approximately parallel to the coast line of the pursuer's and defenders' estates, and representing the average line of the coast ex adverso of the two estates, and also to lay down a normal or perpendicular to such average coast line, drawn from the seaward extremity of the rock of St Skae, as delineated on the 25-inch Ordnance Survey map, with power to Mr Johnston to lay down any other line or lines which may be suggested by either party, and which in his opinion may be useful in determining the question of the true boundary of the pursuer's and defenders' salmon-fishings, with power also to him to make a special report, if necessary, on the subject of the remit, and on this being done, appoints the case to be further heard.”

The report of Mr Johnston, dated 16th January 1884, was in these terms:—“The estates of the pursuer and defenders are united by the same coast line,—the estate of Usan extending 1 mile 7 furlongs to the east, and that of Dunninald extending 1 mile 2 1 2 furlongs to the west of the rock of St Skae, the admitted boundary line or point between the two estates. By the terms of the remit it was required to lay down on a copy of the Ordnance Survey map a line which would accurately represent a medium coast line of the two estates at high-water mark, and on this line to erect a normal or perpendicular line to intersect the seaward point of the rock of St Skae, the continuation of said perpendicular line to form the limit between the two estates seawards. This line is thirty degrees west of true north. An approximate line being drawn, the indentations of the coast north of the line, and the portions of water contained within the part intersected by the line, were carefully measured. The same course was followed for all the portions projecting south of the line. These measurements were continued till the projections and indentations exactly balanced each other on the opposite side of the medium filum.

“On this line, marked A B on plan drawn in carmine, a perpendicular line C D, also in carmine, has been erected from the southern point of the rock of St Skae. This line, continued seawards, according to the remit, is the boundary line between the two estates. The mode of proceeding in fixing the medium filum is the same as that followed by the late Dr Keith Johnston in the Bay of Luce case, as reported in Cases of Court of Session, vol. v., p. 534, 1866–67. As the result of several meetings with the agents for the contending parties, the pursuer's agents have requested me to lay down a line to correspond with the estate boundary line seawards, as shown on plans of the two estates surveyed by George Robertson of Montrose, and dated 22d June 1811. This line is marked E F, and is coloured green. A tracing is added to the Survey map, showing in colours the junction of the two estates taken from the plans referred to above. They corre spond in the line seaward as nearly as could be expected in plans by a country surveyor. Also to lay down a line starting seawards from the point where the two estates join at low-water mark, as shown on the old plans, and at right angles to the medium line. This line is marked G H, and is also coloured green.

The defenders have requested me to lay down a line perpendicular to the medium line, but starting from the north or shore end of the rock of St Skae, in place of the seaward point. I have drawn this line, which is marked I J, and is coloured blue.”

On 24th March 1884 the Lord Ordinary ( M'Laren) pronounced this interlocutor—“Finds and declares that the pursuer is proprietor of the salmon-fishings in the sea adjacent to his lands and estate of Usan or Ulyssesbaven, including the lands of Scotstown, and that the true boundary between the said salmon-fishings and the salmon-fishings in the sea pertaining heritably to the defenders, is in a line laid down by Mr T. B. Johnston, geographer to the Queen, under remit from the Lord Ordinary, marked I J, and coloured blue on a copy of the Ordnance Survey map, signed by the said T. B. Johnston, and dated 16th January 1884, and which line is drawn from the north point of the rock of St Skae, in a direction perpendicular to the medium or average coast line, also laid down on the said Ordnance Survey map: Finds it unnecessary to dispose of the conclusions for interdict, and decerns.”

“ Opinion.—The pursuer and the defenders acquired right to the estates, to which the right of salmon-fishing is attached, by dispositions from a common author. The defenders’ title to the lands is dated in 1811, and by supplementary disposition, dated 30th October 1815, the defender's authors obtained a grant of salmon-fishings on the ‘sea coast, immediately adjacent or opposite to the lands of Dunninald,’ pertaining to him. By disposition, dated 15th March 1817, the pursuer's author acquired right to the estate of Usan or Ulyssesbaven, with the ‘right of salmon-fishing in the sea and river of Southesk adjacent to the said lands.’

The rights of the parties to their salmon-fishings in the sea are therefore described in identical terms with reference to the lands to which they are respectively adjacent, and it appeared to me at the first hearing of the case that the proper and only competent mode of defining these rights was by laying down a perpendicular to the medium or average coast line on the principle which has been applied in previous cases.

There is a question, however, whether the line shall be drawn from the march where it meets the high-water mark, or from a corresponding point taken at low-water mark. Mr Johnston, the Queen's geographer, has laid down alternative lines under the remit made to him in a previous interlocutor, and it will be seen that in consequence of the peculiar configuration of the coast at this point the extent of fishing embraced between these lines is considerable, and that the parties have an appreciable interest in the determination of the proper line.

I have held that the perpendicular drawn from the march at high-water is the legal boundary within which the right of salmon-fishing on either side is to be exercised. It is admitted that the titles to the lands do not confer on either of the parties a right of property in the foreshore. The estate divided between the pursuer's and the defenders’ authors was a barony, and the foreshore might have been acquired by prescription, but it is not said that the foreshore had been so acquired, and Mr Spears, the common author, neither professed to have the right to convey, nor did he convey, the foreshores. The pursuer, however, founds on two plans, according

Page: 53↓

to which the estates were respectively conveyed. In these the foreshores are delineated and tinted, and in one of them the boundary line between the two estates is continued in a straight line across the foreshores into the sea. The pursuer proposes that the geographical boundary line with reference to fishings should start from the point where this imaginary line meets the low-water mark, his argument being that above high-water mark the boundary is fixed by convention. I think that this contention on the part of the pursuer is ill founded. The plans are only referred to in the title-deeds for the purpose of defining the lands thereby conveyed, and it is a rule of construction that a plan is only part of a contract to the extent to which it is there referred to, and for the purposes for which it is incorporated. The surveyor's delineation of the foreshore and its boundaries are not, in my apprehension, part of the contract between seller and purchaser. If it expresses the surveyor's notion of how the foreshore, when required, should be divided, his views are at variance with the rules subsequently laid down by the Court, and in my opinion are not entitled to any weight. There is certainly no reference to any plan for the purpose of fixing the seaward boundary of the salmon-fishings. As these are described in the titles as ‘adjacent to the lands,’ it seems to follow that the sea boundary must start from a definite point in the landward boundary, which can be no other than the point where that boundary meets the high-water line.

I must add that by an error in reading the old plans I directed Mr Johnston in the first place to lay down a line from the seaward extremity of the rock of St Skae, but with power also to lay down such alternative lines as the parties might desire. I am now satisfied that the whole of the rock of St Skae is in the defenders' estate, and that the perpendicular must be drawn from the north side of that rock where the march line meets the shore line. This is the perpendicular marked I J, and I have taken it for the boundary in my interlocutor.”

The pursuer reclaimed, and argued—The titles were silent as regarded the boundaries of the lands conveyed, and therefore it was necessary to look to the plans. On the plans the boundary lines were prolonged over the foreshore. The effect of the title, and the possession following therein, was to give the pursuer the property in the foreshore as bounded by those lines. A proof of the possession should be allowed. The salmon-fishings to which the pursuer had right were ex adverso of the foreshore, and bounded by the lines shown on the plans produced seawards— M'Taggart v. Macdowall, March 6, 1867, 5 Macph. 534; Lord Advocate v. Lord Blantyre, June 19, 1879, 6 R. (H.L.) 72; Glassell, v. Earl of Wemyss, March 22, 1806; North British Railway Company v. Magistrates of Hawick, Dec. 19, 1862, 1 Macph. 200; North British Railway Company v. Moon, February 8, 1879, 6 R. 640; Paterson v. Marquis of Ailsa, March 11, 1846, 8 D. 752; Lord Saltoun v. Park, Nov. 24, 1857, 20 D. 89; Nicol v. Blaikie, Dec. 23, 1859, 22 D. 335; Campbell v. Brown, Nov. 18, 1813, F.C.; Laird v. Reid, March 14, 1871, 9 Macph. 699, 1009.

The defenders replied—As the plans only referred to the land boundaries they could not be looked at in regard to the foreshore— North British Railway Company v. Tod, July 23, 1846, 5 Bell's App. 184, 201. Assuming that the plans settled the boundaries of the foreshore, they settled nothing in regard to the salmon-fishings. The rule laid down in M'Taggart v. Macdowall with reference to the division of the foreshore should be applied here in dividing the salmon-fishings.

At advising—