Smith v. Trustees of Port of Lerwick [1903] ScotLR 40_502 (17 March 1903)

Smith v. Trustees of Port of Lerwick [1903] ScotLR 40_502 (17 March 1903)

The pursuer's title to the foreshore, held under udal tenure and evidenced by a series of written and registered dispositions since 1819, is valid and effectual, as the Crown's right in Shetland is one of sovereignty, not property. The defenders' Crown-derived title is inept, and in the absence of a better competing right, the pursuer is entitled to declarator of ownership.

Citation
[1903] ScotLR 40_502
Parties
Pursuer: Andrew Smith; Defenders: Trustees of the Port and Harbour of Lerwick
Jurisdiction
Scotland
Judgment Date
17 March 1903
Procedural Posture
Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor
Outcome
Appeal dismissed; interlocutor of Lord Ordinary adhered to.
Legal Topics
Foreshore Rights, Udal Tenure, Crown Rights, Shetland Land Law, Registration of Title
Property Law Foreshore Rights Udal Tenure Crown Rights Shetland Land Law Registration of Title

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 16 Party arguments 2
Sign in to unlock

Parties

Andrew Smith

Pursuer

Trustees of the Port and Harbour of Lerwick

Defenders

Procedural Posture

Civil / Appeal (reclaiming Motion) From Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether the pursuer is proprietor of the foreshore ex adverso his property under udal tenure in Shetland
  2. 2 Whether a Crown grant can convey property in the foreshore under udal law
  3. 3 Whether possession or written title is required to establish udal property rights in foreshore

Ratio Decidendi

The pursuer's title to the foreshore, held under udal tenure and evidenced by a series of written and registered dispositions since 1819, is valid and effectual, as the Crown's right in Shetland is one of sovereignty, not property. The defenders' Crown-derived title is inept, and in the absence of a better competing right, the pursuer is entitled to declarator of ownership.

Court Disposition

Appeal dismissed; interlocutor of Lord Ordinary adhered to.

Orders

  • Declarator granted in favour of pursuer as proprietor of the foreshore ex adverso his property, excepting the esplanade and ground on which it is built.
  • Alternative conclusion of the summons dismissed.