Property – Foreshore – Prescription – Possession
A proprietor whose title, dated in 1804, flowed from a subject-superior, and described his property as ‘bounded on the south by the sea,’ brought a declarator of property in the foreshore ex adverso of his lands against the Crown. No evidence was produced of the superior’s title, and the pursuer therefore founded on his own prescriptive possession on his title. He proved that his predecessor had built a retaining-wall, and so reclaimed a considerable portion of the foreshore; that he and his predecessors had been in use for more than the prescriptive period to cart drift sea-ware in large quantities from the shore for manure; that they had occasionally taken stones or gravel from the shore for various purposes; and that they had built and used a private bathing-house on the shore. The Crown in defence proved that a large quantity of stones had been taken by fishermen in their boats from that part of the coast to build a public breakwater, but it was not shown that any considerable quantity had been taken from the part of the foreshore claimed by the pursuer, or that he or his authors knew what was being done. The Crown also proved that members of the public had taken sea-ware from the foreshore claimed by the pursuer in creels or in barrows, but never in carts, as they had only a right of access by foot to that part of the shore, and that they had also taken whelks, mussels, and other shellfish, and shot gulls on the foreshore. Held ( aff. judgment of the Second Division) that the pursuer had proved possession for the prescriptive period, and was entitled to decree of declarator.
Judges:
Lord Chancellor (Halsbury), Lords Watson, Fitzgerald, and Macnaghten
Citations:
[1887] UKHL 763, 24 SLR 763
Links:
Jurisdiction:
Scotland
Land
Updated: 30 June 2022; Ref: scu.636755