Hope v. Bennewith [1904] ScotLR 41_839 (16 July 1904)

Hope v. Bennewith [1904] ScotLR 41_839 (16 July 1904)

A Crown disponee of foreshore cannot interdict a member of the public from entering or being on the foreshore, as public rights persist unless expressly excluded. There is no sufficient averment or established exclusive right to justify interdict against shooting on the foreshore; such rights must be established by declarator. The pursuer's averments were insufficient to support the interdict sought.

Citation
[1904] ScotLR 41_839
Parties
Pursuer/appellant: John Hope of St Mary's Isle, Kirkcudbright; Defender/respondent: John Bennewith
Jurisdiction
Scotland
Judgment Date
16 July 1904
Procedural Posture
Civil (interdict) / Appeal From Sheriff Court to Court of Session, Inner House, Second Division
Outcome
Appeal dismissed; action dismissed; interdict refused.
Legal Topics
Foreshore Rights, Public Rights of Access, Interdict, Shooting Rights, Crown Grant, Trespass
Property Law Public Rights Scots Law Foreshore Rights Public Rights of Access Interdict Shooting Rights Crown Grant +1 more

Case Brief

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Parties

John Hope of St Mary's Isle, Kirkcudbright

Pursuer/appellant

John Bennewith

Defender/respondent

Procedural Posture

Civil (interdict) / Appeal From Sheriff Court to Court of Session, Inner House, Second Division

Legal Issues

  1. 1 Whether a Crown disponee of foreshore can interdict a member of the public from entering or shooting on the foreshore.
  2. 2 Whether the public has a right to be on and shoot on the foreshore absent exclusive rights established by declarator.

Ratio Decidendi

A Crown disponee of foreshore cannot interdict a member of the public from entering or being on the foreshore, as public rights persist unless expressly excluded. There is no sufficient averment or established exclusive right to justify interdict against shooting on the foreshore; such rights must be established by declarator. The pursuer's averments were insufficient to support the interdict sought.

Court Disposition

Appeal dismissed; action dismissed; interdict refused.

Orders

  • Sustained the third plea-in-law for the respondent.
  • Dismissed the action.