Aitken's Trustees v. Caledonian Railway Co. and Another [1904] ScotLR 41_352 (01 March 1904)

Aitken's Trustees v. Caledonian Railway Co. and Another [1904] ScotLR 41_352 (01 March 1904)

Possession of sea-greens, which are not part of the foreshore as they are not covered by ordinary tides, does not constitute possession of the foreshore for purposes of prescription. The pursuers' acts did not amount to possession of the whole foreshore, and their acceptance of a limited Crown grant precludes their claim to the remainder. Prescription requires possession of the actual subject claimed, and the maxim 'tantum prescriptum quantum possessum' applies.

Citation
[1904] ScotLR 41_352
Parties
Pursuers and Reclaimers: James Aitken, Darroch, Falkirk, and others, Trustees of the deceased Henry Aitken of Darroch; Defenders and Respondents: Caledonian Railway Company; Defender and Respondent: The Lord Advocate (representing the Crown)
Jurisdiction
Scotland
Judgment Date
01 March 1904
Procedural Posture
Action of Declarator and Interdict / Reclaiming Motion (appeal) From Lord Ordinary's Judgment
Outcome
Pursuers' reclaiming motion refused; judgment for defenders affirmed; defenders assoilzied (absolved) from conclusions of the summons.
Legal Topics
Foreshore Ownership, Prescription, Possession, Sea Greens, Declarator, Interdict
Property Law Land Law Foreshore Ownership Prescription Possession Sea Greens Declarator Interdict

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Parties

James Aitken, Darroch, Falkirk, and others, Trustees of the deceased Henry Aitken of Darroch

Pursuers and Reclaimers

Caledonian Railway Company

Defenders and Respondents

The Lord Advocate (representing the Crown)

Defender and Respondent

Procedural Posture

Action of Declarator and Interdict / Reclaiming Motion (appeal) From Lord Ordinary's Judgment

Legal Issues

  1. 1 Whether possession of sea-greens constitutes possession of the foreshore for purposes of prescription
  2. 2 Whether prescriptive possession of part of the foreshore entitles a proprietor to the whole foreshore
  3. 3 Whether acts such as opposing bills in Parliament or building sea-walls amount to possession of the foreshore

Ratio Decidendi

Possession of sea-greens, which are not part of the foreshore as they are not covered by ordinary tides, does not constitute possession of the foreshore for purposes of prescription. The pursuers' acts did not amount to possession of the whole foreshore, and their acceptance of a limited Crown grant precludes their claim to the remainder. Prescription requires possession of the actual subject claimed, and the maxim 'tantum prescriptum quantum possessum' applies.

Court Disposition

Pursuers' reclaiming motion refused; judgment for defenders affirmed; defenders assoilzied (absolved) from conclusions of the summons.

Orders

  • Court adhered to Lord Ordinary's interlocutor.
  • Declarator and interdict refused to pursuers.